Commonwealth v. Sullivan

774 N.E.2d 679, 55 Mass. App. Ct. 775, 2002 Mass. App. LEXIS 1149
CourtMassachusetts Appeals Court
DecidedSeptember 10, 2002
DocketNo. 00-P-1110
StatusPublished
Cited by4 cases

This text of 774 N.E.2d 679 (Commonwealth v. Sullivan) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sullivan, 774 N.E.2d 679, 55 Mass. App. Ct. 775, 2002 Mass. App. LEXIS 1149 (Mass. Ct. App. 2002).

Opinion

McHugh, J.

During the summer of 1997, the defendant frequently drove his car to Snow’s Pond in Ware, Hampshire County, disrobed and masturbated while looking at magazines he retrieved from the car’s trunk. Sometimes he carried on that activity under the gaze of young boys who happened to be in the area fishing, riding bicycles, or just playing. When his behavior was brought to the attention of police, the defendant [776]*776was arrested and charged with a variety of offenses.1 Following a jury-waived trial, he was convicted of three counts of open and gross lewdness, see G. L. c. 272, § 16, and two counts of disseminating, or possessing with intent to disseminate, matter harmful to minors. See G. L. c. 272, § 28. On this appeal, he takes no issue with his convictions for lewd behavior. Instead, he asserts that the evidence was insufficient to support his conviction for violation of c. 272, § 28. We disagree.

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the material evidence was to the effect that eleven year old Joe,2 often accompanied by his twelve year old brother, Bob, and their friends, Sam, age unknown, and Dave, age nine, spent large parts of the summer of 1997 at Snow’s Pond. Other boys of similar age often accompanied them. The boys frequently saw the defendant sitting or lying on a lawn chair outside of his parked car in a wooded area near the pond.

Many times when the boys saw him, the defendant was unclothed. Indeed, on one occasion, the defendant was fully clothed when the boys arrived at his car but shed his clothing soon thereafter. When asked by one or more of the boys why he was naked, the defendant responded by saying something to the effect that he was getting vitamins from the sun. During their encounters, the defendant often offered the boys cigarettes, which they accepted.

Sometimes the youngsters saw the defendant looking at magazines containing photographs of unclothed men and women. On a number of occasions, one or more of the boys saw the defendant masturbate. Sometimes he did so while naked, sometimes while wearing a pair of shorts, and sometimes while [777]*777looking at the magazines.3 The boys often saw the defendant retrieve the magazines from beneath the front seat of his car or, more commonly, from a plastic bag he kept in the car’s trunk.

A number of times, the boys asked the defendant if they could look at his magazines. The defendant obliged by showing them the magazine at which he was then looking or by opening the trunk and retrieving magazines from the plastic bag or by inviting the boys to open the trunk themselves and get magazines from the bag the trunk contained.

One afternoon late in the summer, Joe’s father went to the pond in search of Joe. On his arrival, he saw Joe sitting on the trunk of the defendant’s car smoking a cigarette while his friends sat nearby. As one might expect, Joe’s father reacted to his observations with some energy and learned from Joe that the defendant was the source of the cigarette Joe had been smoking. When Joe’s father asked the defendant, who was sitting nearby reading a newspaper, whether he was in fact the source of Joe’s cigarette, the defendant said that he was.

After his discussion with the defendant, Joe’s father returned to his house, Joe in tow, called Ware police, and told them that the defendant was at the pond giving cigarettes to young children. Soon thereafter, the Ware police chief and another officer went to the pond, found the defendant, and questioned him about distribution of cigarettes. The defendant denied having done so. The chief then asked for and received the defendant’s permission to look through the defendant’s car which, as usual, was parked nearby. Among other things, the ensuing search revealed three magazines in a white plastic bag in the trunk.4 One of the magazines bore a cover entitled “Friction” and the other two were coverless. All three were devoted to close up, clinically explicit photographs of men and women engaging in assorted forms of sexual intercourse and amounted essentially [778]*778to photographic collages of body parts and activities lightly veneered with text of no particular consequence.

An ensuing police investigation produced the boys’ accounts of their observations and their exposure to the magazines. The indictments and trial mentioned above quickly followed. At the close of the Commonwealth’s case, the defendant moved to dismiss the dissemination counts on grounds that the evidence was insufficient to support them. More particularly, the defendant maintained, as he does here, that the evidence was insufficient to permit the judge to conclude that the magazines police retrieved from the trunk of his car were the same magazines the boys claimed he had shown them. Even if they were, the defendant argued, the evidence was insufficient to support a conclusion that showing the magazines to the boys violated G. L. c. 272, § 28. The trial judge rejected both contentions. We reject them as well.

Addressing the defendant’s contentions in the order just recited, his assertion that the evidence was insufficient to permit the judge to conclude that the magazines seized by police were those he had shown the boys rests chiefly on the boys’ testimony that the defendant had shown them “Playboy” magazines. He cites several cases holding that Playboy magazine is neither obscene nor unsuitable for display to minors. See, e.g., Playboy Entertainment Group, Inc. v. United States, 918 F. Supp. 813, 819 (D. Del. 1996). Because police found no copies of Playboy magazine in the trunk of the defendant’s car and because the boys offered no testimony that they had seen the magazines police actually found, the defendant urges that there is no evi-dentiary nexus between what the police found and what the boys testified he had shown them.

The defendant’s argument encounters two insurmountable obstacles. First, the evidence supported a conclusion that the boys used the term “Playboy” to describe magazines strikingly similar to those found in the defendant’s possession. For example, Dave, who had turned ten just before trial, testified that the magazines contained naked males and all of their body parts including their penises and other “private parts,” and that the magazines contained “disgusting” pictures of naked men and women revealing the women’s “whole body” and the men’s [779]*779“penises and their stuff.” The evidence thus supported an inference that, to young boys likely unfamiliar with “Friction” or its counterparts, “Playboy” was a generic label used for any magazine containing sexually explicit material.

Second, and more important, the indictments alleged not only that the defendant disseminated matter harmful to minors but also that he possessed such material with the intent to do so. That, too, is activity prohibited by G. L. c. 272, § 28. And the evidence amply supported a conclusion that the magazines police found were intended for display to the boys even if the defendant had not previously shown them their contents. As stated, police found the magazines in the trunk of the defendant’s car, and the boys testified that that is where the defendant kept the magazines they saw during the course of the summer. The police found the magazines in a plastic bag.

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Cite This Page — Counsel Stack

Bluebook (online)
774 N.E.2d 679, 55 Mass. App. Ct. 775, 2002 Mass. App. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sullivan-massappct-2002.