Commonwealth v. Kenneth Hall (September 1st, 2011)
Docket #09-P-1030
Massachusetts Appeals Court
Facts: The defendant approached the victim, an 11 year old girl, on the street and promised her one of the puppies from his pregnant dog. The two became friendly and the girl would spend a lot of time at the defendant’s home. When they were alone, the defendant would ask to see the girl’s underwear and would ask to touch it. In exchange he would promise to buy her things. This kind of behavior and relationship went on for over a year. The defendant bought the girl cell phones and sent her lewd messages and asked her to send pictures of herself, which she did, and he promised to buy her more stuff. The victim’s foster mom had gotten possession of the cell phone and saw the messages and pictures and reported it to the police.
Issue #1: Was there sufficient evidence to show that he intended to lure the victim into entering, exiting, or remaining in a particular vehicle, dwelling, building or outdoor space?
No. Prosecution argues that even though the defendant did not physically lure the victim or force to take the nude pictures or take them himself, giving her the phone and promising to buy her stuff is sufficient evidence to show that he had the intent to lure the victim into posing nude. However, there is no case law that says that the cell phone conversations as they appear in this case constitute luring. The statute in question does not address a situation where the victim takes nude photographs of herself in a place of her choosing. Also, the point of the statute is to protect kids from being lured to a place chosen by the assailant.
Issue #2: Since the pictures were on his cell phone, a medium that is not specifically listed in the statute, and they were not in his phone when the police seized it, should the pictures be included as evidence?
Yes. The court in Perry v. Com. reasoned that pictures produced by a digital camera or a cell phone are the same; the legislative intent behind the statute was to include any type of photograph, no matter how it was taken. As for the pictures not being on the phone when the police seized it, there was sufficient evidence to show that the defendant at one point possessed and viewed the pictures. There was testimony from a representative from the cell phone company that clarified that he had sent messages to the girl and received digital images, and had responded to the images. The court also said that duration for which the defendant had the pictures in his possession does not matter as long as they were under his control for a period of time.
Conclusion: Since there was insufficient evidence to support the fact that the defendant lured the child to enter, exit, or remain within any vehicle, dwelling, building, or other outdoor space, it was erroneous to deny the defendant’s motion for a required verdict of not guilty as to the offense of child enticement; verdict is set aside and judgment entered for defendant. There was sufficient evidence to prove that the defendant possessed child pornography; that judgment is affirmed.
Prepared by KP
