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18-P-172                                                 Appeals Court

                 COMMONWEALTH     vs.   CHARLES STEED.


                              No. 18-P-172.

           Middlesex.       April 9, 2019. - June 11, 2019.

           Present:    Green, C.J., Sullivan, & Ditkoff, JJ.


Deriving Support from Prostitution. Trafficking. Evidence,
     Authentication, Hearsay. Practice, Criminal, Argument by
     prosecutor, Instructions to jury, Failure to object.



     Indictments found and returned in the Superior Court
Department on March 21, 2017.

    The cases were tried before Merita A. Hopkins, J.


     Adam Us for the defendant.
     Caitlin Lyta Gemmill, Assistant District Attorney, for the
Commonwealth.


    GREEN, C.J.       On appeal from his convictions of trafficking

of persons for sexual servitude and deriving support from the

earnings of a prostitute, the defendant challenges the

sufficiency of the evidence supporting the latter charge,

because police placed him under arrest before he received any
                                                                   2


portion of the money paid by an undercover officer to a

prostitute for sexual services as part of a "sting" operation.

On the evidence in the case before us, we conclude that the

interruption of the transaction before the defendant gained

physical possession of his share of the proceeds does not bar

his conviction on a charge of deriving support from a

prostitute, as a share of the money was his, by prior

arrangement, as soon as it was paid by the officer to one of the

women trafficked by the defendant.   Discerning in the

defendant's other claims1 no cause to disturb the judgments, we

affirm.

     Background.   We summarize the evidence the jury could have

found, viewed in the light most favorable to the Commonwealth.

See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

     On January 12, 2017, a police sergeant with the Woburn

Police Department began an undercover investigation into human

trafficking.   The officer began the investigation by locating an

advertisement on Backpage.com, an "online classified" services

website frequently used to advertise escort services.     The

officer's attention was drawn to a particular advertisement

because it involved a telephone number that he recognized from


     1 The defendant also claims error in the admission of
certain evidence and in the jury instructions, and contends that
the prosecutor's closing argument created a substantial risk of
a miscarriage of justice.
                                                                      3


another investigation.   The advertisement contained images of

two females and offered a "two girl special."    The advertisement

gave two telephone numbers, one ending in 7659 and one ending in

6078, to contact the women to arrange a meeting.    The

advertisement was labeled with a unique Backpage.com "Post ID"

of 37877418.   The officer then prepared an undercover operation

to contact the women in the advertisement.     He called and texted

both numbers but received a response only from the 6078 number;

the officer then arranged a "date" with the person on the other

end of that telephone number.2   He arranged to meet two women for

the price of $500 at a hotel in Woburn that evening.

     The defendant drove two women, D.M. and V.G., to the

designated Woburn hotel to meet the officer.    While en route,

D.M. communicated with the officer by cell phone to let him know

that she and V.G. were on their way to the hotel.    The defendant

provided the women with condoms to bring on the date.     The

defendant was nervous about the date and insisted that D.M. ask

the officer to send a "dick pic" to her to verify that he was




     2 The officer explained that a "date" in that context
described "a meeting . . . for the delivery of commercial sexual
services."
                                                                   4


not a police officer.3   D.M. then text messaged a photograph of

herself and V.G. to the officer.4

     The defendant dropped the two women off at the designated

hotel in Woburn, where the officer was waiting.    The officer

gave D.M. $500 in cash and discussed what he wanted them to do.

D.M. placed the $500 in her purse and sent a text message to the

defendant saying, "We're good," meaning that she had the money.

At that point, the officer signaled to other officers waiting in

adjoining hotel rooms, and they began interviewing V.G. and D.M.

     Both women gave the officers their cell phones and

consented to searches of those cell phones.    Through their

interviews with V.G. and D.M., the officers were able to

identify the other woman in the January 12, 2017, Backpage.com

advertisement as O.S.    All three women testified at trial

pursuant to a grant of immunity.

     V.G. was present at the encounter at the Woburn hotel.      She

met the defendant approximately two years prior to trial while

homeless in Boston; the defendant saw her, pulled his car over,

offered her "crack" cocaine, and gave her his cell phone number.




     3 The officer explained that a "dick pic" is a photograph of
the prospective customer's penis. The officer declined to send
the requested picture.

     4 D.M. was one of the two women depicted in the Backpage.com
advertisement for a "two girl special."
                                                                     5


She knew the defendant by the nicknames "Rick," "Tyreki," and

"Cash."   The "next time" she saw the defendant, she began

working for him as a prostitute.   In exchange for her services,

the defendant fed her cocaine and heroin addiction.     The

defendant told her they "could make money," "took [her] to a

store and bought [her] new clothes, took [her] to a house and

gave [her] a shower[,] [a]nd put an ad on Backpage."     The

defendant posted advertisements for V.G.'s sexual services

online on Backpage.com; she witnessed him post those

advertisements, which referred to her as "Honey," the nickname

he gave her, "on multiple occasions."   She also saw the

defendant pay for the advertisements on multiple occasions using

"a prepaid card."   The defendant gave V.G. a cell phone on which

customers could contact her to arrange a date.     The defendant

also arranged hotel rooms for V.G. to meet with customers and

drove her to those hotels or to customers' homes.     The only

person who ever drove her to meet a customer was the defendant,

and the defendant set all the monetary rates for her sexual

services.   Dates with V.G. always involved sex.

    In December 2016, V.G. was hospitalized for several weeks

with a wrist infection that required surgery.      After her

surgery, V.G. left the hospital against medical advice.        The

defendant picked her up from the hospital with an intravenous

line still in her body and brought her to a hotel in Boston,
                                                                    6


where she "got high and started talking about working again;

doing dates."   The encounter with the Woburn police officer

occurred less than twenty-four hours after the defendant picked

her up from the hospital.

    D.M., the other woman present at the encounter at the

Woburn hotel, met the defendant in the summer of 2016 when she

was addicted to heroin and "crack"; the defendant "picked [her]

up for a date," which meant "sex for money," and told her

afterward that he sold "crack," which she wanted.    She knew the

defendant by the name "Cash."

    She began working for the defendant in October 2016,

immediately after she was released from a drug treatment center.

The defendant created advertisements for her sexual services

that were "posted on Backpage."   D.M. occasionally watched the

defendant create these advertisements.   The defendant set the

"rate" for her sexual services and listed the number of the

prepaid cell phone he gave her as the contact number on the

advertisements.   Customers contacted her by text messaging or

calling her cell phone to set up dates, and the defendant drove

her to those dates.   The defendant sometimes spoke directly with

those customers, and other times D.M. would speak with the

customers.   Dates with D.M. usually involved sex.

    D.M. knew there was an advertisement for her services

posted on Backpage.com on January 12, 2017, "[b]ecause we did it
                                                                      7


every day," meaning that the defendant posted an advertisement

for her on Backpage.com every day, "and [the] phone that [she]

used never stopped ringing."   D.M. paid the defendant fifty

percent of her earnings from a date with a customer, but

"inevitably it all went to [the defendant]" because she would

also buy drugs from him.   D.M. identified two of the images on

the January 12, 2017, Backpage.com advertisement at trial as her

own face and body, recognized her own cell phone number in the

advertisement, and denied making the advertisement herself.     She

further testified that the defendant was "in control of every

phone on every encounter," so he knew what the arrangements were

with customers who responded to the Backpage.com advertisements.

    Following the officer's meeting with V.G. and D.M. at the

Woburn hotel, the defendant was pulled over on the highway by

other officers, arrested, and searched.   Inside the defendant's

vehicle, officers located a large bag of condoms, numerous cell

phones, and an unknown female's driver's license.   The defendant

had $1,190 in cash on his person at the time of arrest.

Officers also seized a cell phone from the defendant's person;

the number assigned to that cell phone ended in 9709.

Business records showed that the 9709 cell phone number was

registered to a "Cee Cash Brown"; this was also the same number

listed in the cell phone obtained from D.M. under the contact

name "C Cash" and in the cell phone obtained from V.G. under the
                                                                      8


contact name "Cash."     The cell phone in the possession of V.G.

was a cell phone "used mostly" by the defendant "for business

purposes."    A forensic examination of that cell phone revealed

an associated e-mail address of ceecash85@gmail.com, images of

the defendant, and images of the women in various stages of

undress.     Finally, business records for the January 12, 2017,

Backpage.com advertisement showed that the unique Backpage.com

"Post ID" was registered to the same e-mail address,

ceecash85@gmail.com, and had an associated telephone number

ending in 9709 –- the same number as the cell phone in the

defendant's possession.

    O.S., whose photograph and telephone number also appeared

in the Backpage.com advertisement to which the undercover

officer responded on January 12, 2017, also testified at trial,

though she was not present at the encounter at the Woburn hotel.

The defendant first approached O.S. in the summer of 2016 when

she was homeless in Boston and asked her if she would "like to

party and make money."     She knew him by the nicknames "C,"

"Cash," and "Rick."     The defendant took her to Cape Cod to

provide sexual services for payment.     At the time, she was

addicted to heroin and "crack."     The defendant supplied her with

drugs, which she would pay for out of her earnings while working

for the defendant.     She always paid the defendant forty percent

of the proceeds of her dates and would then pay him additional
                                                                        9


amounts for drugs.    The defendant advertised her sexual services

"on Backpage."   The defendant was responsible for setting rates

for her sexual services and always drove her to the dates.

Though O.S. was not present for the date arranged at the Woburn

hotel, she recognized various characteristics about the

advertisement the undercover officer responded to.       She

identified two photographs of herself in the advertisement,

identified the description "Nerd Librarian" in the advertisement

as a nickname given her by the defendant, and identified one of

the telephone numbers listed in the advertisement as being hers.

She also recognized another photograph in the advertisement as

depicting D.M.

    Discussion.      1.   Sufficiency of the evidence.   To establish

the crime of deriving support from the earnings of a prostitute

under G. L. c. 272, § 7, the Commonwealth must prove "that a

particular individual was a prostitute, that the defendant knew

the individual was a prostitute, and that the defendant shared

in some way in the earnings or proceeds of this person's

prostitution."   Commonwealth v. Purdy, 459 Mass. 442, 454 n.10

(2011).

    The defendant's principal challenge to the sufficiency of

the evidence rests on his observation that he did not receive

any portion of the money paid by the undercover police officer

to one of the women trafficked for sexual services on January
                                                                   10


12, 2017, and his contention that evidence of his receipt of

some portion of that money was essential to prove the crime.5     We

reject the defendant's contention that interruption of the

transfer to him of money paid for sexual services to a person he

has trafficked precludes a conviction of deriving support from a

prostitute on the basis of that payment -- at least in the

circumstances of the present case.   D.M., who received payment

from the undercover officer, testified that she would give the

defendant fifty percent of her earnings from a date with a

customer (and also testified that she had done so on numerous

prior occasions).   In such circumstances, a rational jury could

conclude that the defendant's share of the proceeds became his,

by prior arrangement, as soon as payment was received by D.M.,

and that his share of the funds was simply held by her on his

behalf pending her delivery of that share to him.6


     5 The defendant's challenge to the sufficiency of the
evidence that he knew the women were prostitutes is without
merit for a variety of reasons, not least because the women
testified that they would pay the defendant a share of the funds
received from dates the defendant arranged for them, that he
drove them to and from those dates, and that he supplied them
with condoms for use during their dates. On such testimony, a
rational jury could infer the defendant's knowledge that the
women were prostitutes. The defendant does not challenge the
sufficiency of the evidence that the women whose services the
defendant advertised on Backpage.com were prostitutes; their
testimony acknowledged that they were prostitutes.

     6 We note as well that, though the indictment referred to
the defendant's derivation of support from prostitution only "on
or about the Twelfth day of January in the year of our Lord two
                                                                    11


    2.   Admission of Backpage.com advertisement.    The

defendant's challenge to the admission of the January 12, 2017,

Backpage.com advertisement is likewise without merit.      As a

threshold matter, we observe that the defendant did not object

to admission of the advertisement at trial.    "We generally do

not consider the admission of evidence that was introduced

without objection to be error, per se.    See Commonwealth v.

Stewart, 398 Mass. 535, 543 (1986) ('hearsay evidence admitted

without objection may be considered by the jury and may be given

any probative value it possesses')."     Commonwealth v. Haggett,

79 Mass. App. Ct. 167, 174 n.10 (2011).    The purpose of the

objection is to permit the trial judge an opportunity to ensure

that inadmissible evidence is removed from the jury's

consideration.   "If a timely objection is not made, the evidence

is properly admitted, and the fact finder is entitled to give it

such probative effect as it deems appropriate."    Mass. G. Evid.

§ 103(a) note, at 6 (2019).   However, even though the claim of

error is unpreserved, we nonetheless consider whether the

evidence was admissible and, if not, whether its admission




thousand and seventeen at Woburn," the evidence of the women's
past practice of sharing proceeds from paid sexual encounters
was admitted without limitation, and was relevant to
establishing the nature of the ongoing business conducted by the
defendant.
                                                                  12


created a substantial risk of a miscarriage of justice.     See

Haggett, supra.

    Contrary to the defendant's claim, admissibility of the

Backpage.com advertisement did not depend on proof of the

defendant's authorship of the advertisement.   It was relevant to

prove the offer of sexual services by two women, without regard

to the identity of the person who authored, paid for, or posted

the advertisement.   The advertisement was sufficiently

authenticated by the testimony of the undercover police officer,

who identified it as the advertisement to which he responded

when he arranged his meeting with the women at the Woburn hotel

for paid sexual services.   See Purdy, 459 Mass. at 447 & n.5.

In any event, however, there was ample evidence that the

defendant authored the advertisement, including the e-mail and

telephone numbers furnished to Backpage.com incident to placing

the advertisement (both of which were associated with the

defendant), and the women's testimony that the defendant posted

similar advertisements every day.   See id. at 448.

    3.    Specific unanimity.   As the Commonwealth observes, a

specific unanimity instruction is not required when the

Commonwealth does not proceed "'on alternate theories' of

guilt."   Commonwealth v. Arias, 78 Mass. App. Ct. 429, 432

(2010), quoting Commonwealth v. Santos, 440 Mass. 281, 287-288

(2003).   In the present case, the Commonwealth based its
                                                                     13


prosecution for human trafficking on but one theory of guilt --

an ongoing course of conduct by the defendant offering sexual

services of various women, including Internet advertisements to

solicit customers, driving them to and from arranged sexual

encounters with customers, and sharing in the proceeds from such

encounters.    No instruction on specific unanimity was required.7

     4.    Closing argument.   Finally, we see no impropriety in

the prosecutor's closing argument, and therefore no substantial

risk of a miscarriage of justice.8    The prosecutor's argument

that the immunized witnesses were credible was based in the

evidence and did not constitute improper vouching.    See

Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).     See also

Mass. G. Evid. § 1113(b)(3) (2019).     There also was evidence in

the record to support the prosecutor's comment that the

defendant "targeted" the women he trafficked for sexual

services, based on their homelessness and drug addiction.

                                      Judgments affirmed.




     7 We note as well that the defendant did not request such an
instruction.

     8   Again, the defendant raised no objection at trial.
