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16-P-446                                             Appeals Court

              COMMONWEALTH    vs.   MICHAEL MIENKOWSKI.


                             No. 16-P-446.

           Middlesex.     April 5, 2017. - June 8, 2017.

             Present:   Milkey, Massing, & Desmond, JJ.


Rape.  Obscenity, Child pornography, Dissemination of matter
     harmful to minor. Constitutional Law, Freedom of
     association, Freedom of speech and press. Evidence,
     Photograph, Videotape. Cellular Telephone. Practice,
     Criminal, Instructions to jury, Jury and jurors. Jury and
     Jurors.



     Indictments found and returned in the Superior Court
Department on June 13, 2012.

     The cases were tried before Edward P. Liebensperger, J.


     Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
     Gabriel Pell, Assistant District Attorney, for the
Commonwealth.


     MILKEY, J.   A Superior Court jury convicted the defendant

of two counts of aggravated rape of a child, G. L. c. 265,

c. § 23A, and one count each of posing a child in a state of
                                                                    2


nudity, G. L. c. 272, § 29A(a), and of dissemination of matter

harmful to minors, G. L. c. 272, § 28.   The victim, to whom we

shall refer using the pseudonym Beth, was thirteen years old

when the rapes occurred and fourteen years old at the time of

the incidents underlying the posing and dissemination charges.

On appeal, the defendant principally targets the dissemination

conviction, which was based on the defendant's sending Beth a

video recording (video) of himself masturbating.   He raises a

wide variety of arguments regarding that conviction, including

that, as a matter of law, someone cannot be convicted of

disseminating "a video of something that the [L]egislature has

determined a minor is permitted to see and do in person."    He

also claims error regarding the extent to which the jury were

allowed to examine a cellular telephone (cell phone) that was

admitted in evidence (an argument that relates to all four

convictions).   We affirm.

    Background.    We summarize the facts the jury could have

found as follows, reserving some facts for later discussion.

During her fifth and sixth grade years, Beth lived with her aunt

and uncle in New Hampshire.   This was because Beth's mother was

an alcoholic and drug abuser.   By the fall of 2010, the mother

had temporarily achieved sobriety, and Beth returned to live

with her in an apartment in Lowell.   At this time, Beth had just

turned thirteen and was beginning seventh grade.
                                                                      3


     The defendant, then twenty-three and unemployed, lived in a

neighboring apartment with his own mother.    He and Beth began

"hanging out" when she was not in school, playing video games

and the like.    The defendant protected Beth from being beaten up

by others, and she began spending all of her free time with him.

In fact, she came to believe she was in love with him.

Approximately six months after they met, the defendant regularly

began inserting his finger and tongue into Beth's vagina.      This

was the basis of his two aggravated rape convictions (with the

age difference between them being the aggravating factor).      Beth

also testified that the defendant regularly inserted his penis

into her vagina and mouth, but the jury acquitted him of two

separate counts of aggravated rape based on such conduct.1

     By the end of Beth's seventh-grade year, her mother had

relapsed, and Beth was sent back to live with her aunt and uncle

in New Hampshire.2    Over the course of the summer, she turned

fourteen, and she began eighth grade in the fall.    At this

point, Beth and the defendant lived in different States, but

they continued to communicate by cell phone, including through

text messages.    Because the aunt was suspicious of Beth's


     1
       As the defendant points out, the jury appear to have
convicted the defendant of those rape charges for which the
defendant's own statements (made in text messages he sent to
Beth) corroborated Beth's allegations.
     2
         Beth's mother died a few months later.
                                                                   4


relationship with the defendant,3 she periodically looked through

Beth's cell phone for text messages between them.    The aunt's

efforts at surveillance were thwarted by Beth's daily practice

of deleting all such text messages.

     However, the aunt finally was able to view a lengthy

exchange of text messages that took place between Beth and the

defendant over three days in December, 2011.4   She turned over

the cell phone to the Lowell police, and the text messages

memorialized there became key evidence at trial.    These

messages, which were sexually explicit, provided direct

corroboration of the digital and oral rapes of which the

defendant was convicted.   Two of the messages also were the

basis of the other charges that resulted in convictions.     The

dissemination charge was based on the defendant's attaching to

one of his text messages a video -- shot at very close range --

of him masturbating.5   The charge for posing a child nude was

based on the defendant's inducing Beth to send him back a


     3
       Her suspicions were based on what she observed on Beth's
page on the social media Web site Facebook and on once having
observed the defendant hand Beth a razor while Beth was living
in Lowell.
     4
       There was evidence that the aunt gained access to the cell
phone when Beth was hospitalized after a suicide attempt.
     5
       As depicted in still photographs taken from the video,
only a hand and penis are visible. Beth identified the penis as
the defendant's, and this was corroborated by the defendant's
text messages.
                                                                    5


photograph of her vagina.   The defendant's efforts at such

inducement took many forms, including flattery, statements that

Beth owed him the photograph because he had sent her the

masturbation video, and jealousy-fueled badgering that Beth's

refusal to send him the requested photograph was proof that she

was having sex with others.6

     When questioned by police about his relationship with Beth,

the defendant declaimed that she was a "slut" and a "whore" who

was making false allegations against him.   He denied that he had

raped Beth, sent her the masturbation video, or induced her to

send him the photograph in return.    He admitted to having sent

some of the text messages in the December, 2011, exchange,7 while

suggesting that the ones that were directly incriminating must

have been sent by someone borrowing his cell phone or fabricated

by Beth, the aunt, or the police.    He did not testify at trial

but, through counsel, he continued to press a fabrication

defense.



     6
       One example will suffice to illustrate the tone and
substance of the defendant's text messages. Expressing
frustration that Beth would not send him a better photograph of
her vagina, the defendant texted her: "Yea your afraid to send
a pic cause your afraid your gunna be looser than that pic I
showed you cause you are haveing sex you never hide your pussy"
(misspelling and lack of punctuation in the original).
     7
       In fact, without reference to any specific text messages,
the defendant admitted to having sexually explicit exchanges
with Beth, e.g., about whether she remained a virgin.
                                                                     6


     Discussion.   1.   Sufficiency.   The defendant argues, inter

alia, that the evidence was insufficient to support the

dissemination conviction.   We review the denial of a motion for

a required finding of not guilty to determine whether, in

"viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (quotation

omitted).

     The defendant concedes that there was sufficient evidence

that he sent the video to Beth, but asserts that there was

insufficient evidence that it qualified as "matter harmful to

minors," or that he had specific knowledge of this.    We address

these issues in turn.

     The Legislature has defined "harmful to minors" as follows:

     "matter is harmful to minors if it is obscene or, if taken
     as a whole, it (1) describes or represents nudity, sexual
     conduct or sexual excitement, so as to appeal predominantly
     to the prurient interest of minors; (2) is patently
     contrary to prevailing standards of adults in the county
     where the offense was committed as to suitable material for
     such minors; and (3) lacks serious literary, artistic,
     political or scientific value for minors."

G. L. c. 272, § 31, as amended through St. 1982, c. 603, § 6.8

The masturbation video unmistakably depicts both "nudity" and


     8
       We focus our analysis on the three-part test just quoted.
As the full quote reveals, material is also defined to be
"harmful to minors" if it is "obscene." In turn, the term
                                                                    7


"sexual conduct."   It also makes no pretensions to "serious

literary, artistic, political or scientific value."    The video

thus meets the just-stated statutory test if it "appeal[s]

predominantly to the prurient interest of minors" and "is

patently contrary to prevailing standards."

     The defendant argues that the video cannot meet those

standards because the Legislature has recognized that a child of

fourteen is old enough to partake in consensual sexual activity

that does not involve penetration.   In support of that argument,

the defendant highlights that the Commonwealth cannot prosecute

someone for an indecent assault and battery of a child pursuant

to G. L. c. 265, § 13B (which does not require proof of lack of

consent), unless the child is under the age of fourteen.9    If

Beth could have consented to the defendant's actions in person,

the defendant asks, how could the Legislature have intended to

criminalize his sending her a video of such conduct?

     We are not persuaded, and we have little trouble in

concluding that rational jurors could find that the video

"appeal[s] predominantly to the prurient interest of minors" and



"obscene" is separately defined by a similar three-part test,
albeit one that is not limited to the effect of the material on
minors. See G. L. c. 272, § 31.
     9
       Because the video did not depict any touching between the
defendant and Beth, a closer example might be whether a child of
fourteen could consent to someone's indecently exposing himself.
We express no view on this issue.
                                                                    8


"is patently contrary to prevailing standards."10   This is

especially true when we consider the video in context, as the

defendant vigorously has urged us to do.   See Commonwealth v.

Plank, 378 Mass. 465, 469 (1979) ("[T]he issue of patent

offensiveness is to be decided in context").   The defendant

seeks to portray his sexual relationship with Beth as a

consensual one between a young adult and a mature adolescent.

Our view accords with that of the Commonwealth, which succinctly

stated in its brief:   "The defendant's 'relationship' with the

victim was that of a rapist and his [child] victim."   Moreover,

text messages between the defendant and Beth, which were

admitted as exhibits at trial, demonstrate that the defendant

used the video as part of the currency of his sexual and

emotional abuse of Beth (for example, he presented it as one of

the reasons that the victim had to send him a photograph of her

own genitalia).   The direct evidence that the defendant used the

video in an effort to manipulate and degrade Beth from afar

supplied ample basis for rational jurors to find that the video



     10
       In assessing this, we have assumed arguendo that the
defendant is correct that the word "prurient" must be
interpreted narrowly to mean "'a shameful or morbid interest in
nudity, sex, or excretion,' an unhealthy interest about sexual
matters which is repugnant to prevailing moral standards."
Instruction 7.180 of the Criminal Model Jury Instructions for
Use in the District Court (2009), quoting from Roth v. United
States, 354 U.S. 476, 487 n.20 (1957). See Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 504 (1985).
                                                                      9


satisfied the statutory test.   In sum, the record well

illustrates how such material can be harmful to minors.

     The defendant's related argument that there was

insufficient evidence of his knowledge that the material was

harmful to minors fares no better.   What we said about similar

material one-quarter of a century ago remains true today:     it is

"impossible to believe that any competent adult would be

surprised that this conduct would be proscribed."    Commonwealth

v. Nuby, 32 Mass. App. Ct. 360, 363 (1992).11   In addition, the

defendant's own statements denying that he had sent Beth texts

that included sexually explicit content provide direct evidence

that he knew such conduct was wrong.   For example, as documented

in his taped interview with the police, in response to the

police alleging that he had sent the video to Beth, the

defendant emphatically stated that he "wouldn't send anything

piggish like that."

     2.   Overbreadth and protected speech.   The defendant

maintains that his relationship with Beth fell within the scope

of his right to free association and that his sending the video

to Beth constituted speech protected by the First Amendment to


     11
       For the same reason, we discern no merit in the
defendant's argument that the statute is impermissibly vague.
See Commonwealth v. Bohmer, 374 Mass. 368, 371 n.6 (1978)
("hard-core violator" whose conduct is clearly proscribed by
statute that might be vague as to its reach over other acts is
not entitled to raise vagueness challenge).
                                                                  10


the United States Constitution in the context of that

relationship.   Both arguments are easily refuted.   See

Commonwealth v. Bean, 435 Mass. 708, 711-712 (2002) ("[C]onduct

is appropriately prohibited in light of the compelling State

interest in protecting children from exploitation, even though

the prohibition incidentally impinges on First Amendment

freedoms").   See also Commonwealth v. Disler, 451 Mass. 216, 230

(2008) ("There is no right to free speech or free association

implicated when someone entices another with the intent to

commit a criminal act on [her]").

    The defendant also seeks to press a facial overbreadth

argument, asserting that even if his particular actions do not

constitute protected speech, the statute cannot be enforced

because doing so has the effect of unduly chilling speech that

is protected.   That argument was not raised below in a pretrial

motion to dismiss (or otherwise).   See Commonwealth v. Chou, 433

Mass. 229, 238 (2001) (facial challenge to validity of statute

must be raised in pretrial motion to dismiss).   The issue

therefore has been waived.   Nevertheless, both sides take the

position that such a claim still would be subject to review for

a substantial risk of a miscarriage of justice, and there is

case law to support that contention.   See ibid.; Commonwealth v.
                                                                   11


St. Louis, 473 Mass. 350, 355 (2015).12   In any event, we are

unpersuaded by the defendant's argument that the statute suffers

from facial overbreadth.

     As the Commonwealth highlights, the amended version of

G. L. c. 272, § 28, see St. 2011, c. 9, § 19, explicitly

requires the Commonwealth to prove that the defendant knew both

that the recipient was a minor and that the material transmitted

was harmful.13   The statutory definition of "harmful to minors"

further limits the reach of the statute to material outside the

First Amendment's protection with respect to minors.   G. L.

c. 272, § 31.    Given these constraints, we discern little danger

that the statute will "cause persons whose expression is

constitutionally protected to refrain from exercising their

rights."   Commonwealth v. Jones, 471 Mass. 138, 142 (2015)

(quotation omitted).   See id. at 144-146 (upholding § 28 as in

effect prior to 2011 amendment as not overly broad on basis of

implied requirement of knowledge that victim was minor).   See


     12
        Because a facial challenge either involves abstract
arguments or is based on invoking the rights of others, it is
not clear how an unpreserved facial challenge ever could cause a
substantial risk of a miscarriage of justice. See Commonwealth
v. Russell, 439 Mass. 340, 351 (2003) (substantial risk standard
"does not encompass an abstract, theoretical possibility of a
miscarriage of justice, utterly divorced from the case as it was
tried").
     13
        The judge's charge to the jury reflected the 2011
amendment to G. L. c. 272, § 28, which took effect on April 11,
2011. The dissemination charge covered the period from August
20, 2010, to December 17, 2011.
                                                                    12


also Commonwealth v. Corey, 351 Mass. 331, 334 (1966) (statute

as in effect in 1959 not facially overbroad where court implied

scienter requirement as to harmful nature of content).

    3.     Jury instructions.   The defendant argues that the

judge's instructions to the jury on what it means for material

to be "harmful to minors" were erroneous.     He asserts that the

term "prurient" was given too broad a definition.     He also

argues that the judge's use of the word "or" rather than "and"

between the elements of the three-part test for what makes

material "obscene" effectively removed a component of that test

from the jury's consideration.     Because no objection to these

instructions was lodged at trial, our review is limited to

whether the errors created a substantial risk of a miscarriage

of justice.   Commonwealth v. Perl, 50 Mass. App. Ct. 445, 452

(2000).

    As the Commonwealth points out, where a trial judge

misstates or even omits an element of an offense, there is no

substantial risk of a miscarriage of justice if the element at

issue was not "actively contested at trial."     Commonwealth v.

Spearin, 446 Mass. 599, 609 (2006) (quotation omitted).     Such is

the case here.   At no point before or during trial did the

defendant or his attorney contest the claim that the

masturbation video constituted "matter harmful to

minors."   Therefore, any error in the jury instructions on this
                                                                      13


issue did not cause a substantial risk of a miscarriage of

justice.

     4.    Jury use of the cell phone.   As noted, the text

messages on Beth's cell phone provided key evidence against the

defendant.    These were introduced through individual photographs

taken of each relevant message displayed on the cell phone.       A

Commonwealth expert took these photographs of the cell phone's

screen after manually accessing the text messages.14    Through

cross-examination and argument, the defendant sought to sow

doubt about whether he had sent the messages to Beth, or whether

they instead had been fabricated by her, the aunt, or someone

else.     The cell phone itself was introduced in evidence,

although there was some initial ambiguity about what use the

jury would be able to make of it once deliberations began.       We

proceed to review in some detail how that issue played out.

     At the point the judge allowed the defendant's request to

have the cell phone admitted, the prosecutor did not object, but

inquired, "Can we talk about instructions later?"    The judge

responded, "I will of course instruct them."

     14
       Initially, the expert had tried to extract the text
messages electronically using a program and associated hardware
known as Cellebrite. However, Cellebrite was incompatible with
this model of cell phone, and it therefore generated a report
that the expert concluded was unreliable. Although the
defendant never established the reliability of the Cellebrite
report, the judge allowed him substantial leeway in seeking to
use it to impeach the Commonwealth's expert's conclusions about
the contents of the cell phone.
                                                                   14


    The cell phone's having been admitted in evidence came up

next during the charge conference.    The prosecutor stated her

position that the jury should be allowed to make only a limited

examination of the cell phone:

    "I'd ask that the Court, when it instructs the jury about
    examination of the telephone, Exhibit 81, that it also
    instruct that they are to limit their consideration to the
    facts that are actually in evidence and that any other
    conversations between the alleged victim in this case and
    any other person is irrelevant and is not to be considered
    by them in their determination of the defendant's guilt or
    innocence."

Defense counsel then stated her client's position in the

following terms:

    "I think Your Honor has gotten that part of my argument is
    that it's not reliable that it's been tampered with, that
    it has been manipulated, the phone. And so I certainly
    don't want them to not look at other things but I agree
    that they can't consider it in terms of the defendant's
    guilt or innocence. But I don't want them to go out there
    with the impression that they are only restricted to what's
    on those screen shots because that's the whole point of
    admitting the phone."

The judge responded by stating:    "I think that will be clear

from my instruction."

    During her closing argument, defense counsel several times

urged the jury to look through the cell phone.    In instructing

the jury about their handling of it, the judge stated as

follows:    "You should limit your consideration to what is in

evidence.    I have ruled to the extent the phone might contain

texts from other people no relevant texts have been offered in
                                                                  15


evidence by either side."    The defendant raised a limited

objection to this instruction, arguing:    "I did move to admit

the phone and I don't want -- I'm not moving for them to look at

the content of the texts but the date, the time, whatever else

is on the phone I think is important for them to determine the

reliability of the phone."    The judge declined to give

additional instruction, and the defendant's objection was noted.

    After the case went to the jury, they posed the following

question to the judge:

    "Your Honor: Are we limited only to screen shots numbered
    as evidence in the case, within the phone? Or do we have
    free rein to explore other content on the phone?"

The Commonwealth reiterated its consistent position that in

examining the cell phone, the jury should be limited to viewing

the text messages between the defendant and Beth that separately

had been introduced as screen shots, e.g., to assess the

accuracy of those screen shots.    The defendant's position is

more difficult to describe, because counsel both argued for

giving the jury "free range to explore the phone," while also

conceding that the jury should not be "considering as evidence

the content of the texts" between Beth and others.    The judge

essentially adopted the Commonwealth's position, responding to

the jury's question as follows:

    "You are limited to the evidence admitted in this case.
    That evidence includes the screen shots numbered in
    evidence. Other information on the phone, if any, is not
                                                                     16


    evidence. You may explore the phone to compare the
    contents to the screen shots."

Although the defendant objected to this, there was never any

offer of proof made as to what the jury would have found had

they been allowed freer rein.

    On appeal, the defendant argues that the judge's placement

of limits on the jury's examination of the data contained in the

cell phone somehow severely constrained his defense of

fabrication.   Even today, the defendant is unable to articulate

what data was excluded from the jury's eyes, how the judge erred

in effectively excluding such data, and how the defendant was

prejudiced thereby.   Indeed, the defendant has not even

demonstrated that any of the unidentified material that he

wanted the jury to be able to see had any probative value

whatsoever (to say nothing of countervailing prejudice to the

Commonwealth, privacy concerns, and the like).   See Commonwealth

v. Gray, 463 Mass. 731, 751 (2012).   We have little difficulty

in concluding that the judge did not abuse his discretion in

limiting the jury's exploration of Beth's cell phone.      See id.

at 751-752 (determinations of relevance and probative value are

"committed to the sound discretion of the trial judge and will

not be disturbed by a reviewing court absent palpable error"

[quotation omitted]).
                                                                   17


    The defendant makes a second argument related to the cell

phone issue that stands on somewhat firmer ground.   He suggests

that by the judge's initial admission of the cell phone in

evidence without limitation, and then by his statements at the

charge conference as to what his instructions would make clear,

the judge led defense counsel to invite the jury to roam through

the cell phone in her closing argument.   Then -- according to

the defendant -- the judge cut the legs out from under such an

argument through his instructions and his answer to the jury's

question.   See Commonwealth v. Smith, 49 Mass. App. Ct. 827, 832

(2000).

    To the extent that the defendant suggests that the judge

changed his mind with respect to how much leeway the jury would

have to explore the cell phone, we disagree.   At the same time,

as the detailed recitation of the handling of the cell phone

issue set forth above reveals, until the judge issued his

instructions, there was some ambiguity regarding how he intended

to handle the issue.   It may also be that neither the litigants

nor the judge fully had considered the plethora of difficult

issues that may be raised when a cell phone containing troves of

unidentified electronic data is delivered into a jury's hands.

    With the luxury of twenty-twenty hindsight available to

appellate judges, we can say that it would have been preferable

to resolve how much leeway the jury would be given with the cell
                                                                   18


phone at an earlier point in the proceedings.15    However, "[a]

defendant is entitled to a fair trial but not a perfect one."

Commonwealth v. Graves, 363 Mass. 863, 872 (1973) (quotation

omitted).   We are confident that the defendant received a fair

trial here for several reasons.   Especially given that the

prosecutor flagged the need for jury instructions regarding the

cell phone when it was introduced in evidence, we do not view

the judge's admission of the cell phone without express

limitations on its use as resolving what the jury could do with

it.   Moreover, any confusion coming out of the charge conference

appears to have been due, at least in significant part, to the

lack of clarity in the statement of the defendant's position on

the issue (to which the judge was responding).     In addition,

although defense counsel's closing argument suggested that the

jury would be able to explore the cell phone more freely than

they were allowed to, the defendant has never argued that the

jury should have been given the free rein they inquired about.

Thus, this is not a case where the judge's instructions

contradicted the defendant's closing argument.     Contrast

Commonwealth v. Smith, 49 Mass. App. Ct. at 832.     Finally, prior

to trial, the court provided the defendant with funds to pay for

an expert to explore whether the text messages between Beth and

      15
       In fact, such issues -- and the propriety of a cell
phone's going to the jury at all -- would best be addressed in a
pretrial motion in limine.
                                                                 19


the defendant had been fabricated, and during the trial, the

judge allowed defense counsel significant leeway in seeking to

raise questions about the authenticity of these messages.   In

sum, the defendant had a fair opportunity to advance his claim

that the messages were fabricated.   We discern no reversible

error in the judge's handling of the cell phone issue.

                                     Judgments affirmed.
