Commonwealth v. Rollins

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SJC-11583

COMMONWEALTH vs. JOHN K. ROLLINS.

Hampden. September 4, 2014. - October 30, 2014.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Obscenity, Child pornography. Constitutional Law, Sentence,

Double jeopardy, Freedom of speech and press. Due Process

of Law, Sentence. Practice, Criminal, Sentence,

Duplicative convictions, Double jeopardy, Argument by

prosecutor. Evidence, Photograph, Relevancy and

materiality, Opinion.

Complaint received and sworn to in the Holyoke Division of

the District Court Department on May 7, 2010.

The case was tried before Laurie MacLeod, J.

The Supreme Judicial Court granted an application for

direct appellate review.

Ines McGillion for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the

Commonwealth.

Ryan M. Schiff, Committee for Public Counsel Services, for

Committee for Public Counsel Services, amicus curiae, submitted

a brief.

2

CORDY, J. In this case, we are asked to identify the

proper unit of prosecution for the possession of child

pornography pursuant to G. L. c. 272, § 29C. The defendant,

John K. Rollins, was charged with six counts of possessing child

pornography with each count premised on one or two distinct

photographs culled from a single cache on the defendant's

computer. A Hampden County jury returned guilty verdicts on

each count and a District Court judge sentenced the defendant to

consecutive and concurrent terms in a house of correction.

We granted the defendant's application for direct appellate

review and conclude that where the offending photographs come

from a single cache and the defendant is charged with possessing

them at the same point in time, the statutory structure

contemplates only a single unit of prosecution. Accordingly,

the entry of six separate convictions and sentences constituted

multiple punishments for the same offense in violation of the

defendant's constitutional and common-law rights to be free from

double jeopardy.

While double jeopardy principles bar multiple convictions

and sentences, they do not bar the Commonwealth from prosecuting

the possession of multiple photographs through separate counts,

each premised on a single photograph, as a single photograph is

sufficient to support a conviction. Accordingly, assuming the

sufficiency of the evidence on any or all of the multiple

3

counts, we would ordinarily vacate the convictions and remand

this case to the trial judge for the entry of a judgment of

conviction and resentencing on only one count. However, because

we conclude that numerous errors occurring at trial created a

substantial risk of a miscarriage of justice, we vacate the

convictions and remand for a new trial.1

1. Background. We summarize the facts as the jury could

have found them, reserving certain details for our analysis of

the issues raised on appeal. In late December, 2009, the

defendant brought his computer to a computer repair shop in

Holyoke seeking repairs. As the technician, Joshua Charland,

worked on the computer, the image of a young girl in a bikini

appeared on the computer's monitor. The defendant stated that

the image was a photograph of his daughter. Once Charland

completed his work on the computer, he returned it to the

defendant and reported the image to Holyoke police Officer James

Bartolomei.

Two days later, the defendant returned to the computer

repair shop and asked Charland for further repairs to the

computer. The defendant explained that he had attempted to

erase the computer's hard drive and reinstall the operating

system, following which, the "mouse" stopped working. Charland

1

We acknowledge the amicus brief submitted by the Committee

for Public Counsel Services.

4

requested the defendant's personal information so that he could

contact him when the computer was ready. Charland, sensing that

"something was up," then used forensic recovery software to

search the defendant's computer for deleted files. During the

course of his search, Charland discovered approximately 1,200

images, including photographs depicting nude and scantily clad

young girls, which he recovered to a "flash drive."

Officer Bartolomei was once again notified, prompting him

to visit the computer repair shop, view the images on the flash

drive, and confiscate the defendant's computer. Officer

Bartolomei then telephoned the defendant, informed the defendant

that he had taken the computer, and requested that the defendant

come to the police station for questioning. The defendant

returned to the shop, where he learned that Charland had

discovered what he believed to be child pornography on the

computer. The defendant remarked that the images were probably

placed there by a friend.

The following day the defendant was interviewed by two

detectives. During the interview, the defendant explained that,

after unintentionally stumbling across a Web site depicting

child pornography a few months prior, he began conducting a

secret and independent investigation into child pornography on

the Internet. The defendant averred that it was his intention,

on completion of the investigation, to deliver the "proof" to

5

the Chicopee police department. At the conclusion of the

interview, the defendant confirmed his ownership of the computer

in police custody and consented to a search of its contents.

The defendant's computer was then transferred to a forensic

computer examiner at the New England State Police Information

Network (NESPIN). Using specialized software, the examiner

conducted a forensic examination of the computer and discovered

deleted files in the unallocated space of the computer's hard

drive. He then recovered and transferred 6,094 images to a

digital video disc (NESPIN disc) that he provided to the Holyoke

police department.

Detective David Usher of the Holyoke police department

reviewed approximately 1,200 of the images on the NESPIN Disc

and then printed twelve photographs -- each depicting either

nude or scantily clad young girls. On May 7, 2010, the

Commonwealth filed a six-count criminal complaint against the

defendant. Each count charged him with the possession of child

pornography on December 30, 2009, in violation of G. L. c. 272,

§ 29C (§ 29C), and each was premised on distinct photographs

recovered from the defendant's computer. Specifically, counts

one through five were each premised on a separate, single

photograph culled from the twelve that Detective Usher printed

from the NESPIN disc, while count six was premised on two

photographs culled from those twelve.

6

At trial, the Commonwealth presented evidence that the

defendant knowingly downloaded the charged photographs,

including the defendant's statement to the Holyoke police that

he downloaded them in a purported effort to assist law

enforcement in the eradication of child pornography. The

Commonwealth introduced the seven charged photographs and five

uncharged photographs through the testimony of Detective Usher.

At the close of the Commonwealth's case, the defense moved for a

directed verdict based primarily on the Commonwealth's failure

to establish possession. The judge denied the defendant's

motion. The defense then rested, and the jury heard closing

arguments.

The jury were then provided with six verdict slips.

Attached to each slip for counts one through five was a single

image. By contrast, two images were attached to the slip for

count six. The jury returned guilty verdicts on all six counts.

On counts one, two, and three, the defendant was sentenced to

three concurrent terms of two and one-half years in a house of

correction. On counts four, five and six, the defendant was

sentenced to an additional three concurrent terms of two and

one-half years in a house of correction to commence upon the

defendant's completion of his sentences on counts one, two, and

three.

7

We granted the defendant's application for direct appellate

review, wherein he contended that, inter alia, his convictions

were duplicative and the errors occurring at trial raised a

substantial risk of a miscarriage of justice. We agree.

2. Discussion. a. Duplicative convictions. The double

jeopardy clause of the Fifth Amendment to the United States

Constitution and Massachusetts common law preclude the

imposition of multiple punishments for the commission of a

single crime. Marshall v. Commonwealth, 463 Mass. 529, 534

(2012). Our jurisprudence defines "multiple punishments" as

those "in excess of what a Legislature intended to be the

punishment for a particular offense." Commonwealth v. Selavka,

469 Mass. 502, 509-510 (2014), quoting Aldoupolis v.

Commonwealth, 386 Mass. 260, 272 (1982), S.C., 390 Mass. 438

(1983). Accordingly, the starting point for our analysis is to

ask what "unit of prosecution" the Legislature intended as the

punishable act for violations of § 29C. See Commonwealth v.

Rabb, 431 Mass. 123, 128 (2000).

This "inquiry requires us to look to the language and

purpose of the statute[], to see whether [it] speak[s] directly

to the issue of the appropriate unit of prosecution, and if [it]

do[es] not, to ascertain that unit, keeping in mind that any

ambiguity that arises in the process must be resolved, under the

rule of lenity, in the defendant's favor." Id. Similarly, we

8

are mindful of the general rule that "criminal statutes must be

construed strictly against the Commonwealth." Commonwealth v.

Constantino, 443 Mass. 521, 523-524 (2005). With this framework

in place, we turn to the statute at issue, which criminalizes

the knowing possession of child pornography.

The statute provides, in pertinent 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 . . . depicted or portrayed in any pose, posture

or setting involving a lewd exhibition of the unclothed

genitals, pubic area, buttocks or, if such person is

female, a fully or partially developed breast of the child;

with knowledge of the nature or content thereof shall be

punished by imprisonment in the [S]tate prison for not more

than five years or in a jail or house of correction for not

more than two and one-half years or by a fine of not less

than $1,000 nor more than $10,000, or by both such fine and

imprisonment for the first offense, not less than five

years in a [S]tate prison or by a fine of not less than

$5,000 nor more than $20,000, or by both such fine and

imprisonment for the second offense, not less than [ten]

years in a [S]tate prison or by a fine of not less than

$10,000 nor more than $30,000, or by both such fine and

imprisonment for the third and subsequent offenses."

G. L. c. 272, § 29C (vii).

The Commonwealth correctly observes that the singular tense

employed by the Legislature in § 29C demonstrates that a single

offending photograph is sufficient to support a conviction of

possession of child pornography. It does not necessarily

follow, however, that each photograph supports its own unit of

prosecution where they are collectively possessed at a single

9

point in time, as the mere use of singularity in a statute is

not, in and of itself, controlling. See G. L. c. 4, § 6, Fourth

("Words importing the singular number may extend and be applied

to several persons or things . . ."). Thus, the statute

prohibits both the possession of a single photograph as well as

the possession of multiple photographs.

Because the plain language of the statute is, at best,

ambiguous as to the appropriate unit of prosecution,2 we examine

the proposed penalty scheme through the lens of the rule of

lenity. See Rabb, 431 Mass. at 128. We observe initially that,

as a logical consequence of the Commonwealth's construction of

the statute, the defendant in this case, a first-time offender,

was essentially sentenced to five years in a house of

correction. Yet, the statute's penal framework provides that a

first-time offender only may be imprisoned for a maximum of

either two and one-half years in a house of correction or,

alternatively, five years in a State prison. G. L. c. 272,

§ 29C. The punishments also grow progressively more severe on

2

The Legislature will often insert qualifying, if not

explicit, language signaling its view that each violative act

may warrant separate punishment. See, e.g., G. L. c. 143,

§ 94 (a) ("Whoever violates any provision of the state building

code . . . shall be punished by a fine of not more than one

thousand dollars or by imprisonment for not more than one year,

or both, for each such violation. Each day during which a

violation exists shall constitute a separate offense" [emphasis

added]). Aside from the tiered penalty scheme for subsequent

offenders, no such language is employed in G. L. c. 272, § 29C

(§ 29C).

10

convictions of subsequent offenses. For example, for second and

third offenses, a defendant faces minimum State prison terms of

five and ten years, respectively. Id.

Notwithstanding this tiered framework, the Commonwealth

proposes that a first-time offender who downloads one hundred

violative photographs to the same location at the same time may

be sentenced to one hundred consecutive five-year State prison

terms -- that is, 500 years -- in State prison, whereas a

similarly situated defendant who purchases a magazine containing

one hundred offending images could, apparently, be sentenced to

only a maximum of five years in State prison. The prospect of

imposing what are essentially life prison terms for first

offenses risks nullifying the tiered penalty framework created

by § 29C. See Flemings v. Contributory Retirement Appeal Bd.,

431 Mass. 374, 375-376 (2000) ("If a sensible construction is

available, we shall not construe a statute to make a nullity of

pertinent provisions or to produce absurd results"). We doubt

that the Legislature intended to produce such an anomalous

result, and absent evidence to the contrary, we decline to

conclude that it did.

The Commonwealth argues that there is evidence to the

contrary in the legislative purpose statement in St. 1997,

c. 181, which inserted § 29C into the General Laws. It reads

that statement as evincing a clear legislative intent to protect

11

individual children from exploitation and victimization. St.

1997, c. 181, § 1 (2) ("each time such material is viewed the

child is harmed"). As such, urges the Commonwealth, the proper

course is to treat possession of child pornography in the same

manner as other crimes of violence, which generally follow a

victim-based approach in terms of unit of prosecution. See,

e.g., Commonwealth v. Crawford, 430 Mass. 683, 686-687 (2000)

("We have implicitly approved the imposition of consecutive

sentences for crimes of violence committed against multiple

victims because the appropriate 'unit of prosecution' for such

crimes is the person assaulted or killed, not the underlying

criminal act"). We do not read the purpose statement so

narrowly.

Although the purpose statement does reflect concern for the

protection of individual children, the Legislature also found

"that the [C]ommonwealth has a compelling interest in outlawing

the possession of any materials which sexually exploit children

in order to protect the privacy, health and emotional welfare of

children and society as a whole" (emphasis added). St. 1997,

c. 181, § 1 (6). The significance of this finding is bolstered

by the Legislature's placement of § 29C in a chapter devoted to

"Crimes Against Chastity, Morality, Decency and Good Order."

Such a placement is indicative of the Legislature's intent to

"punish[] the defendant for conduct offensive to society, as

12

distinct from punishing the defendant for the effect of that

conduct on particular victims." Commonwealth v. Botev, 79 Mass.

App. Ct. 281, 287 (2011).

Considering the purpose statement in conjunction with these

other statutory provisions, we understand § 29C to be aimed at

eradicating the harmful societal effects posed by the

circulation of child pornography, including, but not limited to,

the harm caused to the individual children depicted therein.

Accordingly, we reject the Commonwealth's victim-based approach

to determining the appropriate unit of prosecution for

possession of child pornography, concluding instead that a

conduct-based approach is more in keeping with the broad intent

of the statute and the tiered punishment framework that it

erects.3

In identifying the conduct underlying each unit of

prosecution for possession of child pornography, we find useful

analogies in other types of possession cases. See, e.g., Rabb,

3

The Washington Supreme Court reached a similar conclusion

in State v. Sutherby, 165 Wash 2d 870 (2009) (en banc). In that

case, the statute criminalizing child pornography also included

a legislative purpose statement suggesting concern regarding the

abuse and exploitation of children. However, as with § 29C,

that legislative purpose statement did not clearly identify the

victims as the units of prosecution. Sutherby, 165 Wash. 2d at

882 n.4. As in this case, it was "clear that the proscribed

conduct [was] the possession of child pornography" and, as such,

the proper unit of prosecution was "one count per possession of

child pornography, without regard to the number of images

comprising such possession or the number of minors depicted in

the images possessed" (emphasis in original). Id. at 879, 882.

13

431 Mass. at 129-132. In Rabb, we noted "various considerations

for identifying when separate quantities of drugs exist to

justify two or more charges: 'Generally, courts which have

considered the issue [of multiple prosecutions under controlled

substance statutes] have determined that separate convictions

for possession of the same type of controlled substance [with an

intent to distribute] will not violate the Double Jeopardy

Clause if the possessions are sufficiently differentiated by

time, location, or intended purpose.'" Id. at 130, quoting

Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997), cert. denied,

522 U.S. 1075 (1998). See Commonwealth v. Beacon Distribs.,

Inc., 14 Mass. App. Ct. 570, 574-575 (1982) (indictment alleging

twenty counts of possessing obscene films in same place at same

time alleged single offense).

We conclude that similar considerations control the unit of

prosecution in this case.4 Thus, a defendant's possession of a

4

The logic of extending these considerations to possession

of child pornography is supported by the reasoning of United

States v. Chiaradio, 684 F.3d 265 (1st Cir.), cert. denied, 133

S. Ct. 589 (2012). Although the Federal analogues to § 29C

employ different language and sentencing schemes, the statute at

issue in Chiaradio criminalized the possession of "one or more"

matters containing depictions of child pornography -- a standard

not markedly different from § 29C. See 18 U.S.C.

§ 2252(a)(4)(B) (2012). The United States Court of Appeals for

the First Circuit, finding no "inkling that Congress intended to

allow prosecutors to divide simultaneous possession by a single

individual of several matters containing child pornography into

multiple units of prosecution, . . . [held] that the plain

language of [§] 2252(a)(4)(B) memorializes Congress's intent . .

14

single cache of one hundred offending photographs in the same

place at the same time gives rise to a single unit of

prosecution pursuant to § 29C.5 The imposition of multiple

punishments for such a singular possession is contrary to the

defendant's guaranty against double jeopardy. See Kuklis v.

Commonwealth, 361 Mass. 302, 308 (1972) ("it was not the

legislative intent that a defendant should be punished for both

possession of a drug and being present where the drug was kept,

where the two charges involve the same time and place, and the

identical mass of a single drug"). Importantly, the meaning of

"punishment" for double jeopardy purposes is not limited to

consecutive sentences, but extends also to concurrent sentences

and multiple convictions. Commonwealth v. Jones, 382 Mass. 387,

395-396 (1981).

. that one who simultaneously possesses a multitude of forbidden

images at a single time and in a single place will have

committed only a single offense." Chiaradio, 684 F.3d at 274.

5

To the extent the Commonwealth relies on Commonwealth v.

Dingle, 73 Mass. App. Ct. 274 (2008), in support of multiple

sentences for first-time offenders, that case is distinguishable

on its facts. We do not, therefore, opine on the question posed

in that case whether the possession of distinct formats of child

pornography enumerated in § 29C (photographs, computer discs,

and a computer hard drive) could constitute distinct units of

prosecution if found in the same location at the same time. See

id. at 282-283. Nor do we opine whether the Commonwealth could,

in another case, distinguish units of prosecution for possession

of child pornography of the same format by establishing

different periods of possession. The Commonwealth did not make

such an argument in this case.

15

Yet, double jeopardy principles do not necessarily extend

to simultaneous prosecutions. See United States v. Pires, 642

F.3d 1, 16 (1st Cir. 2011) (double jeopardy clause of Federal

Constitution does not protect against simultaneous prosecutions

for same offense, so long as no more than one punishment is

eventually imposed). As such, the Commonwealth may elect to

prosecute a single violation of § 29C by way of multiple counts.6

See, e.g., Beacon Distribs., Inc., 14 Mass. App. Ct. at 575

(Commonwealth entitled to proceed on twenty-count indictment

even though possession of twenty obscene films at issue

constituted single offense). Should that procedure result in

multiple guilty verdicts for the same offense, the duplicative

convictions must be vacated and merged into a single conviction

for sentencing purposes. Cf. Commonwealth v. Rivas, 466 Mass.

184, 191-192 (2013) (within judicial discretion to vacate either

of duplicative convictions); United States v. Chiaradio, 684

F.3d 265, 284 (1st Cir.), cert. denied, 133 S. Ct. 589 (2012)

6

Such an election may raise certain concerns. See, e.g.,

Commonwealth v. Hrycenko, 417 Mass. 309, 316-317 (1994)

(convictions reversed where Commonwealth's identically worded

indictments rendered it impossible to determine basis of jury's

acquittals and convictions); Commonwealth v. Jones, 382 Mass.

387, 395 n.10 (1981) (noting that Commonwealth may have to

choose between charges where "necessary to protect the

substantial rights of the defendant"); Commonwealth v. Benjamin,

358 Mass. 672, 677-678 (1971) (expressing disapproval of

repetitious and overlapping indictments where fewer will

suffice).

16

(directing judge to merge duplicative convictions of possession

of child pornography).

Here, the Commonwealth charged the defendant with six

counts of possession of child pornography -- each premised on

photographs contained in the same cache at the same time -- and

the jury returned guilty verdicts on each of those six counts.

The imposition of six convictions and sentences for the

defendant's singular act of possession violated the guaranty

against double jeopardy. See Jones, 382 Mass. at 395-396.

Accordingly, were we to hold that any of those convictions could

stand, the appropriate remedy would be to vacate the duplicative

convictions and remand for resentencing on the remaining count.

Yet, as we explain below, a retrial is the appropriate remedy in

this case.

b. First Amendment protection regarding counts one through

three.7 The defendant appeals his convictions on counts one

through three on grounds that the photographs underlying each

count were protected by the First Amendment to the United States

Constitution and were insufficient to support a conviction under

§ 29C. Specifically, the defendant asserts that one of the

photographs did not exhibit the nudity required by § 29C and,

7

The defendant has not challenged counts four and five on

the grounds of the First Amendment to the United States

Constitution or sufficiency.

17

even if it did, none of the three photographs exhibited

lewdness.

Where, as here, a defendant charged with possessing child

pornography seeks the cloak of First Amendment protection, we

undertake a de novo review of the challenged images. See

Commonwealth v. Rex, 469 Mass. 36, 42-43 (2014); Commonwealth v.

Sullivan, 82 Mass. App. Ct. 293, 303 (2012). Although it is

clear that "depictions of nudity, without more, constitute

protected expression," it is equally clear that States retain

the authority to criminalize the possession of lewd exhibitions

of nude minors. Osborne v. Ohio, 495 U.S. 103, 112-114 (1990).

Section 29C accomplishes the latter, but does not define

lewdness. In determining whether a particular image constitutes

a "lewd exhibition," we have looked to the criteria articulated

in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal.

1986), aff'd, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S.

856 (1987) (Dost factors), specifically:

"1) whether the focal point of the visual depiction is on

the child's genitalia or pubic area;

"2) whether the setting of the visual depiction is sexually

suggestive, i.e., in a place or pose generally associated

with sexual activity;

"3) whether the child is depicted in an unnatural pose, or

in inappropriate attire, considering the age of the child;

"4) whether the child is fully or partially clothed, or

nude;

18

"5) whether the visual depiction suggests sexual coyness or

a willingness to engage in sexual activity; [and]

"6) whether the visual depiction is intended or designed to

elicit a sexual response in the viewer."

These factors, while neither comprehensive nor dispositive,

provide important guidance and should be applied in a manner

that furthers the legislative intent underlying § 29C. Rex, 469

Mass. at 45. In particular, we note the Legislature's concern

over the "wrongful invasion of a child's right to privacy" and

the "permanent record of an act or acts of sexual abuse and

exploitation of a child," and "that such material is used to

break the will and resistance of other children." St. 1997,

c. 181, § 1 (1)-(3). We now review the three disputed

photographs, keeping in mind that "[a] visual depiction need not

involve all of the Dost factors in order to be deemed lewd."

Rex, supra.

Trial exhibit 6 (count one) is a photograph of two fully

nude girls standing close together. The girl on the left is in

a sexually suggestive pose with her hands on her head, back in a

severe arch, and torso jutting forward and touching the girl on

the right. The girl on the right has a coy smile, suggesting a

willingness to engage in sexual activity. Her right and left

hands are placed on the buttocks and undeveloped breast,

respectively, of the girl on the left. The image is pixelated

and embellished with sporadic text, but is clear enough that

19

part of each girl's genital area is visible. The placement of

the text draws the viewer's attention to the girls' genital

areas. Given the nudity, posing, and touching, it is apparent

that the picture is designed to elicit a sexual response in the

viewer.

Trial exhibit 7 (count two) is a photograph of two wet,

nude girls in a bathtub. Although the genitals are not exposed,

we disagree with the defendant's assertion that the image lacks

the requisite nude exposure. The viewer can see the partially

developed breasts of the girl on the right and the side of the

buttock of the girl on the left. As was aptly observed in

Sullivan, 82 Mass. App. Ct. at 305, these girls are "well past

the age of the 'Coppertone girl.'" The girl on the left is

smiling, holding soap bubbles, and standing with her knees bent,

back arched forward, and buttocks jutting out. The girl on the

right is sitting and making a kissing face with her head pressed

against the torso of the girl on the left. The posing and

facial expressions suggest a sexual coyness that, we conclude,

is designed to elicit a sexual response in the viewer.

Trial exhibit 8 (count three) is a photograph of a fully

nude girl. She is facing the viewer, but standing in front of a

mirror such that her backside is visible as well. Although the

image is grainy, her buttocks, undeveloped breast, and genital

area are visible to the viewer. She is smiling with one hand

20

covering her mouth and one arm unnaturally twisted behind her

back. The placement of the mirror and the twisted arm render

the girl's buttocks the focal point of the image. The pose is

suggestive of either mischief or domination and thus seems

designed to elicit a sexual response in the viewer.

It is evident that these photographs go beyond the mere

depiction of nudity. Contrast Rex, 469 Mass. at 47-48. The

first two images depict children who are touching each other

while donning sexually suggestive poses and facial expressions.

The third image, depicting a child unnaturally posed in front of

a full-length mirror, exposing both sides of her entirely naked

body, creates precisely the type of permanent record of invasion

and exploitation that the Legislature sought to eradicate

through the enactment of § 29C. See St. 1997, c. 181, § 1 (2).

Consequently, these photographs are not entitled to protection

under the First Amendment, and the judge could properly have

determined that the evidence on counts one through three was

sufficient for their submission to the jury.

c. Duplicity of count six. The defendant next contends,

for the first time on appeal, that his conviction on count six

must be vacated as duplicative. This argument is not sound.

"Duplicity is the charging of several separate offenses in a

single count." Commonwealth v. Barbosa, 421 Mass. 547, 553 n.10

(1995), quoting R.M. Kantrowitz & R. Witkin, Criminal Defense

21

Motions § 9.7 (1991). Compare Commonwealth v. Fuller, 163 Mass.

499, 499-500 (1895) (quashing as duplicative single indictment

charging multiple acts of adultery), with United States v.

Valerio, 48 F.3d 58, 63 (1st Cir. 1995) (attacks on evidence

underlying single possession charge do not sound in duplicity).

The Commonwealth submitted two photographs to the jury in

support of a single charge of possession of child pornography.

As we explain today, the possession of those two photographs

formed part of the same unit of prosecution. The Commonwealth

is free to charge the possession of multiple images under a

single count on the theory that any of those images may be

sufficient to support the conviction. See Beacon Distribs.,

Inc., 14 Mass. App. Ct. at 575. Thus, there is no duplicity

problem here. See Valerio, 48 F.3d at 63.

Nonetheless, when the Commonwealth elects to proceed in

this manner, it runs the risk of violating the rule articulated

"in Commonwealth v. Matchett, 386 Mass. 492, 511 (1982), . . .

that if the evidence presented to the jury would warrant a

conviction on one ground, but not on another, and it is

impossible to tell on which ground the jury relied, the verdict

must be set aside on appeal" (citations omitted). Chambers v.

Commonwealth, 421 Mass. 49, 51-52 (1995). See Hrycenko, 417

Mass. at 316-317. Here, the first photograph submitted by the

Commonwealth on count six, exhibit 11A, depicts a young girl

22

inserting a power drill into her mouth. None of the body parts

enumerated in § 29C is visible to the viewer. Conversely, in

the second photograph, exhibit 11B, the same young girl is

depicted nude holding the same power drill.

The Commonwealth casts exhibit 11A as mere relevant context

for the lewdness of the power drill, and concedes that its

possession does not violate the statute, whereas exhibit 11B

"was clearly the image upon which the complaint was issued."

This argument is contrary to the record. Detective Usher

specifically testified that he premised the complaint on both

photographs, which he contrasted with the five remaining

photographs printed and introduced for context. The jury were

simply provided with two photographs attached to a single

verdict slip, but were never instructed that exhibit 11B was the

only charged photograph. Accordingly, we conclude that the more

reasonable inference was that the Commonwealth was proceeding on

both photographs.

The jury were given neither specific unanimity instructions

nor special verdict slips. Cf. Commonwealth v. Accetta, 422

Mass. 642, 646 (1996) ("where there is evidence of separate

incidents, each of which could warrant a guilty verdict, the

jury must be instructed that specific unanimity is required at

least as to one incident. . . . In addition, we would expect in

such a case that any guilty verdict would be accompanied by an

23

indication on the verdict slip of the theory or theories on

which the jury based that verdict"). We are left with no way of

discerning whether the jury premised their guilty verdict solely

on the basis of exhibit 11A, which the Commonwealth concedes

would have been plainly insufficient to support a conviction

pursuant to § 29C. Consequently, the conviction on count six

must be set aside.8

d. Trial errors and ineffective assistance of counsel.

Last, the defendant contends that an amalgamation of improper

admissions of irrelevant and prejudicial evidence, improper

testimony by Detective Usher, improper closing argument by the

prosecutor, and inadequate jury instructions deprived him of a

fair trial. The defendant also maintains that he received

ineffective assistance of counsel. "[W]hen the claim of

ineffectiveness is predicated, as it is here, on counsel's

failure to object to something that occurred at trial, the

standard for evaluating the ineffectiveness claim is not

significantly different from the substantial risk standard that

is applicable to our review of the underlying, unpreserved

error." Commonwealth v. Azar, 435 Mass. 675, 686 (2002), S.C.,

444 Mass. 72 (2005).

8

If the Commonwealth includes several photographs that it

alleges are lewd in a single count, which it is entitled to do,

the jury's verdict must clearly record the specific photographs

that the jury unanimously agreed were violative of the statute

in order to ensure proper appellate review.

24

On the morning of the first day of trial, the Commonwealth

disclosed for the first time its intention to introduce five

uncharged photographs as a "representative sample" of the

approximately 1,200 images that Detective Usher viewed on the

NESPIN disc. Defense counsel objected to the introduction of

these items as cumulative, prejudicial, and irrelevant. The

judge opined that the images could show absence of mistake,

pattern of conduct, or modus operandi. Following a review of

about 200 of the approximately 1,200 images that Detective Usher

had reviewed, the judge concluded that the Commonwealth could

introduce the sample photographs so long as a proper foundation

was laid for their representative character.

At trial, Detective Usher explained that the NESPIN disc

contained more than 6,000 photographs and that he had viewed

approximately 1,200 of those photographs. He then printed seven

for charging purposes and five as an "average sample of what

other photos were on that dis[c]." These five "representative"

photographs were then introduced as exhibits 12A through 12E.

"Whether evidence is relevant in any particular instance,

and whether the probative value of relevant evidence is

outweighed by its prejudicial effect, are questions within the

sound discretion of the judge." Commonwealth v. Dunn, 407 Mass.

798, 807 (1990). It is the defendant's contention that the

admission of the representative photographs constituted an abuse

25

of that discretion. The Commonwealth counters that the

admission of the photographs was relevant to the defendant's

intentional or knowing possession of child pornography.

The defendant has the better of the arguments on this

point. To the extent the judge relied on the reasoning of

Commonwealth v. Darby, 79 Mass. App. Ct. 1107 (2011)

(unpublished), in accepting the Commonwealth's theory, that

reliance was misplaced.9 In Darby, the defendant stipulated that

the representative video recordings were, in fact, child

pornography. Id. By comparison, here, the Commonwealth

concedes that the representative photographs did not contain

nudity and, thus, were not child pornography as defined by

§ 29C. We fail to see how the possession of legal photographs

is probative of the defendant's knowing or intentional

possession of illegal photographs.

This is particularly true where, as here, the jury viewed a

videotaped interview of the defendant stating that he

intentionally downloaded the images. Accordingly, it is highly

unlikely that the jury would have used the representative sample

as evidence in rebuttal of a mistake defense. Conversely, there

9

Defense counsel, having lost on her initial objection to

the admission of these photographs, did not object when they

were individually offered in evidence. Although the

Commonwealth contends that these failures to object may have

been strategic, any such strategy would have been manifestly

unreasonable. See Commonwealth v. Lane, 462 Mass. 591, 598-599

(2012).

26

was a substantial risk that the jury would use the photographs

as evidence of the bad character of the defendant, as several of

the photographs depicted young girls, while not nude, posed in

highly sexualized positions even more provocative than the nude

images underlying the charges. Cf. Commonwealth v. Prashaw, 57

Mass. App. Ct. 19, 25-26 (2003) (prejudicial error to admit

sexually suggestive photographs not probative of guilt).

The prejudice arising from this error was compounded by the

improper testimony of Detective Usher. Despite only viewing

approximately 1,200 of the more than 6,000 images on the NESPIN

disc, Detective Usher testified, without objection, that the

five representative photographs were an "average sample of what

other photos were on that dis[c]." Detective Usher then opined,

on cross-examination, that he "could have charged [the

defendant] with many counts" but "decided after six counts, that

would be enough."

Essentially, the jury were left to form the unfounded

conclusion that the defendant would be fortunate to be convicted

on only six counts -- regardless of whether those six

convictions corresponded precisely to the images that Detective

Usher selected for each count. This theme continued during the

Commonwealth's closing argument, when the prosecutor offered his

own view regarding the purpose of § 29C:

27

"[W]hen the Legislature made a law making child

pornography, possession of child pornography, illegal,

. . . they noted, every time someone possesses and looks at

those pictures, that child is harmed. And that is why the

statute was done. With that in mind, I would ask you to

look at all the evidence that you have in front of you, to

consider all the testimony you heard, and when you do, I'd

suggest you'll find the defendant guilty on all six

counts."

We have repeatedly warned that, in "closing argument,

'[l]awyers shall not and must not misstate principles of law.'"

Commonwealth v. Bins, 465 Mass. 348, 367 (2013), quoting

Commonwealth v. Haas, 373 Mass. 545, 557 (1977), S.C., 398 Mass.

806 (1986). Moreover, prosecutors especially must take care to

limit their closing "to the evidence and fair inferences that

can be drawn from the evidence," Commonwealth v. Kelly, 417

Mass. 266, 270 (1994), and to avoid interjecting personal

opinions or playing to the emotions of the jury, Commonwealth v.

Kozec, 399 Mass. 514, 516-517 (1987). Although a judge may

"inform a jury about the legislative purpose of a statute," even

then, he or she must do so accurately. Commonwealth v.

Brunelle, 361 Mass. 6, 12 (1972).

As indicated above, the prosecutor's selective reading of

the legislative findings painted an incomplete, and thus

inaccurate, picture of the legislative intent. It was also not

particularly probative of whether the defendant possessed child

pornography. Cf. United States v. Norton, 639 F.2d 427, 429

(8th Cir. 1981) (prosecutor's "testimony" during closing

28

argument regarding purpose of Federal gun control act not

relevant to defendant's possession of gun). Rather, it invited

the jury to gloss over the question of possession as to the

photographs that formed the bases of the six counts and to

convict the defendant based on their sympathy for those harmed

by each viewing. Although the judge instructed the jury that

the closing arguments were not evidence, she did not provide a

curative instruction targeted at the prosecutor's erroneous

explication of the legislative history. See Commonwealth v.

Coren, 437 Mass. 723, 731-733 (2002).

The judge's instruction on lewdness was also insufficient.

The judge instructed the jury, without objection, that "to prove

that there was a lewd exhibition of the unclothed genitals,

pubic area, or buttocks, or, if a female, her fully or partially

developed breast, I will inform you that the term 'lewd' under

our statutes and case law means 'indecent or offensive.' That's

the definition of 'lewd.'" By contrast, the judge had

previously informed counsel that she would include an

instruction that "proof that an image contains nudity, alone, is

not sufficient for a conviction." When the judge omitted this

language, defense counsel should have lodged an objection.

It is, of course, true that "judges are not required to

deliver their instructions in any particular form of words, so

long as all necessary instructions are given in adequate words."

29

Commonwealth v. Sinnott, 399 Mass. 863, 878 (1987). The precise

contours of the instruction can and should be informed by the

physical evidence, testimony, and other conduct of the trial

that precede it. The Sullivan case is a comparable example.

There, the Appeals Court found no error in the trial judge's

failure to give a "mere nudity is not enough" instruction where

the judge recited the Dost factors and instructed the jury that

certain uncharged photographs introduced by the Commonwealth

were:

"only to be used . . . to determine whether [the defendant]

intended to download this particular photograph, and

whether that is the absence of mistake or inadvertence, and

may be used . . . secondly to go to his knowledge of what

he was downloading. But it . . . should not be used at all

for evidence of bad character or whether the other pictures

were appropriate or not."

Sullivan, 82 Mass. App. Ct. at 308-310. The Dost factors were

not included in the instructions in this case.

Here, in view of the prejudicial evidence, testimony, and

argument presented by the Commonwealth at trial, the judge was

required to do more than simply instruct the jury that lewd

means "indecent or offensive."10 The judge seems to have agreed,

10

We are mindful that Instruction 7.540 of the Criminal

Model Jury Instructions for Use in the District Court

(Possession of Child Pornography) was not available until

January, 2013, after the trial in this case. The model

instruction provides, in relevant part: "Proof that an image

contains nudity is not alone sufficient for a conviction. The

image must be of a person engaged in (an activity) (one of the

activities) specified in the second element." The instructions

30

but inadvertently omitted an instruction that "nudity, alone, is

not sufficient." As in Sullivan, that omission alone was not

enough to render the instructions inadequate. The instructions

were rendered inadequate by the concomitant lack of a limiting

instruction and a practical roadmap -- such as the Dost factors

-- to aid the jury in discerning whether the stated definition

of lewdness had been satisfied.

In sum, the Commonwealth used photographs not violative of

the statute to suggest to the jury that the NESPIN disc

contained thousands of images that were, at minimum, reflective

of the defendant's bad character, if not criminally

pornographic. The testimony of Detective Usher, along with the

misleading soliloquy on legislative intent by the prosecutor,

invited the jury to draw adverse conclusions regarding the

defendant's culpability for harms extending well beyond the

evidence presented at trial. The jury instructions were too

feeble to cleanse the trial of the unfairness wrought by the

Commonwealth in this case. For all these reasons, we hold that

the errors at trial gave rise to a substantial risk of a

miscarriage of justice.

then define "lewd" as "indecent or offensive," and offer the

factors articulated in United States v. Dost, 636 F. Supp. 828,

832 (S.D. Cal. 1986), aff'd, 812 F.2d 1239 (9th Cir.), cert.

denied, 484 U.S. 856 (1987), as a guide to aid the jury in

determining whether that definition has been met.

31

3. Conclusion. The judgments of conviction are vacated,

the verdicts are set aside, and the case is remanded to the

District Court for a new trial.

So ordered.