Commonwealth v. Sean K. Dodgson (September 1st, 2011)
Docket #09-P-1972
Massachusetts Appeals Court
Facts: Police officers were conducting an undercover online investigation, posing as minors. Two officers, with undercover screen names, had conversations with the defendant that were sexually graphic. The defendant sent a picture of his penis, and went on to make specific plans to meet with the girls. Defendant showed up at location, a Dunkin Donuts, looked at the officers, went in, then came back out and left. The next day he sent a message to one of the screen names saying that he was glad the girls of Kingston were being protected by the police, and that he was only testing the effectiveness of the system. He proceeded to delete his Yahoo contacts, edited his account, reinstalled the Windows Operating system on his computer, and wrote a document describing the events, his motives, and the perceived flaws in the police operation. The police arrested the defendant and interviewed him. He claimed he was testing the police to make sure his daughter was safe online.
The defendant was convicted on three counts of attempted dissemination of matter harmful to a minor, one count of dissemination of obscene matter, and two counts of enticement of a child under the age of 16. The defendant appeals on 5 grounds: 1) online instant messages are not matter; 2) the private transmission of a picture is not “dissemination” of obscene material; 3) the admission of his subscription to an online adult dating service was improper; 4) the prosecutor’s closing argument was improper; 5) he suffered ineffective assistance of counsel.
Issue #1: Do online instant messages count as “matter,” under matter harmful to children?
No. In Com. v. Zubiel, the court held that online electronically submitted messages are not matter. However, the Legislature amended the statute in 2010 to broaden the definition of matter to “any electronic communication, including online messages.” But, the 2010 amendment cannot apply in this case because the events of this case happened in 2006.
Issue #2: Does the transmission of the naked erect penis in a private online conversation fall under “dissemination” of obscene matter?
Yes. Dissemination does not require proof of commercial activity or multiple recipients. It’s dissemination as long as the harmful material is distributed to a person.
Issue #3: Was the admission of the defendant’s subscription to an online dating service improper?
No. This is left to the trial judge’s discretion, but this kind of evidence can be admissible in order to show a “common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Com. v. Helfant, 398 Mass. 214, 224 (1986). In this case, the trial judge was correct in letting this evidence in as relevant. The subscription showed a motive of sexual indulgence, and weakened the defendant’s claim that he was doing it to test the effectiveness of the law enforcement.
Issue #4: Were statements from the prosecutor’s closing argument improper?
No. The prosecutor used the word “guilty” following the description of the picture of the erect naked penis, and used the word “we” to improperly align himself with the jury. Although it is improper for a prosecutor to express his personal belief and to use the word “we” (should use the word “community”, he is allowed to advocate in favor of his client, which he did here, and his word choice was not excessive and did not create a substantial risk of a miscarriage of justice.
No. The defendant argued that the prosecutor should not have led the jury to believe that he had been rehearsing his testimony. Generally, a prosecutor should not use the word “rehearse” because it can impose on the defendant’s right to prepare for a trial; but, this is usually a problem when the prosecutor makes reference to the defendant preparing and rehearsing a defense with their counsel. In this case, the prosecution provided evidence that writing the explanatory document and reinstalling Windows were parts of a preemptive defense strategy, thus references to rehearsal were not improper.
No. The prosecutor was not wrong to refer to the fact that the defendant had never discussed his plan with his wife, if in fact it was a plan to test the effectiveness of law enforcement. The prosecutor did not try to find information of conversations between the defendant and his spouse, he just commented on the lack of conversation.
Issue #5: Was the defendant’s counsel ineffective?
No. This appeal should be brought in a motion for new trial directed to the original trial judge, but the court does not see any reason to find ineffective counsel based on the record.
Conclusion: Affirm judgments for dissemination of obscene matter and enticement of a child. Reverse the judgments for attempted dissemination of matter harmful to a minor.
Prepared by KP
Prepared by KP
