Commonwealth v. Sullivan

972 N.E.2d 476, 82 Mass. App. Ct. 293, 2012 WL 3055467, 2012 Mass. App. LEXIS 235

• Court: Massachusetts Appeals Court
• Decided: July 30, 2012
• Docket: No. 10-P-1869
• Status: Published

Opinions

Kafker, J.

The defendant, Mark Sullivan, was convicted of one count of possession of child pornography, G. L. c. 272, § 29C(vii), and possession of child pornography as a subsequent offense, G. L. c. 272, § 29C.¹ He argues on appeal that the photograph of a naked adolescent girl that he printed from a computer at the Hingham public library (library) did not contain a lewd exhibition of the pubic area of the girl or of her breasts as required by G. L. c. 272, § 29C(vii). He contends that the jury instructions on lewd exhibition were incomplete, and that prejudicial, irrelevant evidence regarding other pictures he was viewing in the library was admitted. He also claims that defects in the indictment and O’Dell violations in the grand jury process required dismissal of the indictment. See Commonwealth v. O’Dell, 392 Mass. 445, 446-447 (1984). We affirm.

Background. A librarian, checking on a computer in an isolated alcove of the library, found the defendant printing out a photograph of a naked girl on a beach.² The librarian told the defendant this was not what the computers were to be used for, and he tried to take the photograph away from the defendant. The defendant ripped the photograph away, leaving the librarian with only a small piece of it. As another picture started to print, the librarian turned the printer off and told the defendant that he could lose his library privileges. The librarian then contacted his supervisor, who came to speak to the defendant. The defendant informed the supervisor that the “images were heavily censored,” to which the supervisor responded that it was irrelevant. The defendant then stated, “I couldn’t help it. It was a pop-up.” The librarian then inquired, if that were so, why it printed. The defendant had no response. When asked his name, the defendant said, “Smith.”

After the library closed, the librarian reviewed the computer’s Web site history and found the photograph the defendant had printed, as well as others of children on beaches and in other settings, with and without clothes. He determined the printed photograph came from a Russian-based Web site called “Photo-file.RU.”

The grand jury were informed that the librarian also saw that the defendant had reviewed sex offender sites and that one of the names that the defendant had checked on the site was Mark Sullivan. The librarian “ran” a search for that name and found it to be the name of a level three sex offender from Norwell. The librarian retrieved a photograph of Mark Sullivan on the sex offender registry Web site and identified it as a photograph of the library patron who had printed out the photograph the librarian had seen. The librarian contacted the police.

The indictment. The defendant claims that the trial judge erred in not dismissing the indictment for failing to state a crime. Although very poorly drafted, the three-page indictment, when read as a whole, was sufficient.

An indictment will not be dismissed “if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him. It is not necessary for the Commonwealth to set forth in the . . . indictment every element of the crime to withstand a motion to dismiss.” Commonwealth v. Fernandes, 430 Mass. 517, 520 (1999), cert, denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) (citations omitted). See Commonwealth v. Roby, 462 Mass. 398, 402-405 (2012). Rather, it is acceptable for the indictment to contain “an appropriate legal term descriptive” of the criminal act. Commonwealth v. Green, 399 Mass. 565, 566 (1987), quoting from Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). Thus in Green, it was held sufficient to allege that the defendant “[d]id indecently assault and beat” the victim without specifying each element of the offense. Id. at 566-567.

The indictment here began with the following caption: “INDICTMENT[,] PURCHASE OR POSSESSION OF VISUAL MATERIAL OF CHILD DEPICTED IN SEXUAL CONDUCT[,] GENERAL LAWS CHAPTER 272, SECTION 29C[,] COUNT A.” Count A then provided that Mark Sullivan on or about February 14, 2007, in Hingham “did knowingly . . . possess a . . . photograph ... of any child whom the person knows or reasonably should know to be under the age of eighteen years. See Count B.”

The indictment then continued with the caption to Count B, which provided: “PURCHASE OR POSSESSION OF VISUAL MATERIAL OF CHILD DEPICTED IN SEXUAL CONDUCT, SUBSEQUENT OFFENSE[,] GENERAL LAWS CHAPTER 272, SECTION 29C.” The language from Count A was then repeated, followed by the clause, “after having been previously convicted in.” His ten previous convictions of possession of child pornography or posing or exhibiting children in a state of nudity were then listed.

The defendant argues that the indictment failed to charge him with a crime because he was accused only of knowing possession of a photograph of a child under eighteen. No crime was charged, he contends, because the indictment omitted the substance of subsection (vii) of c. 272, § 29C, inserted by St. 1997, c. 181, § 2, which provides that the child in the photograph the defendant possessed “be depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child.”

We conclude that the entire indictment, which includes the captions and the subsequent offense portions of the indictment, provided the defendant with sufficient information to know both the nature of the accusation against him and the law that he was accused of violating. The indictment references the date and place of the offense. It also states that the defendant is being prosecuted for possession of a photograph of a child arising out of these events. The caption references the chapter and section of the statutory violation and further describes the conduct proscribed: visual material of a child depicted in sexual conduct.

Reliance on the caption is not improper. “The caption on an indictment has been used in aid of interpreting the text of an indictment.” Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 459 (1999), S.C., 430 Mass. 517 (1999), cert, denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000). So long as they are not inconsistent with each other, the caption may be used to “illuminate[]” the meaning of the body of the indictment. Ibid. Compare Commonwealth v. Williams, 73 Mass. App. Ct. 833 (2009) (may not use caption to justify amendment of complaint after trial to include new form of vehicular homicide with additional elements and more severe maximum sentence). Here the body of the indictment is incomplete without the caption, but it is not inconsistent with the caption.

The subsequent offense portion of the indictment also informs the defendant of the nature of the accusation and the statutory violation. “[T]he counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentence enhancement provision.” Commonwealth v. Fernandes, 430 Mass. at 520-521. The defendant’s numerous prior convictions of possession of child pornography are listed in the indictment. The indictment informs the defendant that the new crime he is being charged with involving child pornography is a repeat offense, of which he is undoubtedly aware. “Here, a reader of count B of the indictment would require practiced obtuseness not to understand the nature of the offense charged.” Id. at 523, quoting from Commonwealth v. Fernandes, 46 Mass. App. Ct. at 459.

The indictment need not contain reference to the particular subsection or theory of culpability with which the defendant is being charged. Cf. Commonwealth v. DePace, 442 Mass. 739, 743 (2004), cert, denied, 544 U.S. 980 (2005) (“The statutory form of an indictment alleging murder that is not self-limiting to murder in the second degree encompasses all theories of murder in the first degree and is sufficient to charge murder by whatever means it may have been committed”); Commonwealth v. Morales, 453 Mass. 40, 52 (2009). Just as the Commonwealth is not required to “present to the grand jury evidence of each theory under which the defendant may be found guilty at trial,” Commonwealth v. Clayton (No. 1), 63 Mass. App. Ct. 608, 612 (2005), it need not reference the particular theory upon which it is proceeding in the indictment.³

In sum, after reading the indictment in its entirety, the defendant was well informed of which statute he was accused of violating and why. This was sufficient to justify the judge’s decision to deny the motion to dismiss the indictment.

Integrity of the grand jury process. The defendant contends that by presenting unnecessary and prejudicial “bad acts” evidence to the grand jury, the Commonwealth “impaired the integrity of the grand jury proceedings,” necessitating dismissal of the indictment obtained thereby. Commonwealth v. Rice, 441 Mass. 291, 309 (2004). See Commonwealth v. O’Dell, 392 Mass. at 446-447.

“It is the general rule that a court should not inquire into the adequacy or competency of the evidence upon which an indictment is based.” Commonwealth v. Salman, 387 Mass. 160, 166 (1982). “However, when it appears that the integrity of the grand jury process has been impaired, a defendant may attack the validity of the indictment by way of a motion to dismiss.” Ibid. In order to prevail on such a motion, the defendant must prove that “(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury’s decision to indict.” Commonwealth v. Silva, 455 Mass. 503, 509 (2009).

The evidence to which the defendant takes exception is the material uncovered by the librarian after the defendant was found printing out the photograph of the naked girl on the beach. After the defendant left the library, the librarian reviewed the Web sites that the defendant had been viewing, which included the sex offender registry and sex offender Web sites, where the defendant had been examining his own listing. The librarian found the defendant’s listing as a level three sex offender and his photograph, from which the librarian identified the defendant. Prior statements to library personnel by other library patrons concerning their suspicions regarding the defendant’s use of the library’s computer to view pornography on other occasions further confirmed his identity. Submitting this evidence to the grand jury to establish the defendant’s identity was neither false nor improper, especially where the defendant concealed his identity at the library by giving a false name, and was not apprehended at the scene.

The Commonwealth also was required to establish the defendant’s knowing possession of the photograph. When confronted by the librarian with the photograph printing out, the defendant had claimed it was a “pop-up,” that is, that he did not deliberately go to the Web site, choose the photograph, and print it. His Internet searches that day, including the other Web sites that he was visiting and the photographs he was viewing, were relevant to his knowing possession of the photograph at issue, as were his prior similar activities at the library.

As the evidence was relevant to the Commonwealth’s proof of the crime and neither false nor deceptive, the motion judge properly found that there was no O’Dell violation.

Lewd exhibition. General Laws c. 272, § 29C, provides:

“Whoever knowingly purchases or possesses a negative, slide, book, magazine, film, videotape, photograph or other similar visual reproduction, or depiction by computer, of any child whom the person knows or reasonably should know to be under the age of 18 years of age and such child is . . . (vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child; with knowledge of the nature or content thereof shall be punished by imprisonment in the state prison for not more than five years . . . .”

The statutory purpose underlying the prohibition of knowing possession of child pornography is set forth in § 1 of St. 1997, c. 181:

“The general court hereby finds: (1) that the sexual exploitation of children constitutes a wrongful invasion of a child’s right to privacy and results in social, developmental and emotional injury to such child and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce; (2) that the mere possession or control of any sexually exploitative material results in continuing victimization of children as such material is a permanent record of an act or acts of sexual abuse or exploitation of a child and that each time such material is viewed the child is harmed; (3) that such material is used to break the will and resistance of other children so as to encourage them to participate in similar acts; (4) that laws banning the production and distribution of such material are insufficient to halt this abuse and exploitation; (5) that to stop the sexual abuse and exploitation of children, it is necessary to ban the possession of any sexually exploitative materials; and (6) that the commonwealth has a compelling interest in outlawing the possession of any materials which sexually exploit children in order to protect the privacy, health and emotional welfare of children and society as a whole.”

The photograph in the instant case is of a naked adolescent girl sitting on her knees on a beach with her legs separated, but not spread, and her pubic area partially visible. The focal point of the photograph is her developing breasts and, to a lesser extent, her pubic area. Her developing left breast and nipple are prominently displayed. The tilt of her head, the shadow line it creates, the angle of her glasses and ponytail, and her right arm align with her right nipple, drawing the viewer’s attention to it. Her left hand is pointed down and over, but not touching, her pubic area, placing half of her pubic area in shadow. Her hand position draws the viewer’s attention to her pubic area. The girl is staring downward. She is not smiling, nor is she otherwise engaging with the photographer. Someone who knows the girl would be readily able to identify her from the photograph. She does not appear to be posed.⁴

All but one of the statutory requirements are undisputedly satisfied here. The defendant does not challenge that the picture of the girl was a photograph or visual depiction by computer, that he knowingly possessed the photograph, that he was knowledgeable of the content of the photograph, and that he knew or reasonably should have known that the girl depicted in the photograph was under eighteen years of age. He also does not dispute that this was a subsequent offense. The only issue is whether the photograph is lewd.

Much has been written on what it means for an image to be lewd. In New York v. Ferber, 458 U.S. 747, 764 (1982), the United States Supreme Court, in interpreting a statute that prohibited the “lewd exhibition of the genitals” of a child under sixteen years of age, explained that such a statute would not violate the First Amendment to the United States Constitution, even if the exhibition did not “appeal[] to the prurient interest of the average person” or was not “patently offensive.” The State was free to criminalize exhibitions of children that were lewd but not obscene. Id. at 753. See Commonwealth v. Kenney, 449 Mass. 840, 848 (2007).

The United States Supreme Court and the Supreme Judicial Court have carefully explained their reasons for this special standard of solicitude for children in the context of First Amendment challenges to child pornography prosecutions. “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” New York v. Ferber, supra at 757. This “interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ” Commonwealth v. Kenney, supra at 848, quoting from New York v. Ferber, supra at 756-757. Moreover, “[i]n cases involving child pornography, . . . ‘the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake,’ that States may constitutionally proscribe the production” or possession of a lewd photograph of children, “whether or not it depicts works of value.” Ibid., quoting from New York v. Ferber, supra at 761, 763-764.

Even with this heightened standard of protection of children, nudity alone is not enough to render a photograph lewd. See Osborne v. Ohio, 495 U.S. 103, 112 (1990); United States v. Amirault, 173 F.3d 28, 33 (1st Cir. 1999) (Amirault). Cf. Commonwealth v. Bean, 435 Mass. 708, 715 n.17 (2002) (Bean). It is a “lewd” exhibition of the genitals, pubic area, buttocks, or female breast that is required. In deciding whether a particular exhibition of the naked body is lewd, the courts have utilized the so-called Dost5 factors as a starting point for analysis, recognizing that they are not dispositive or comprehensive, but aids to further analysis. See Bean, supra at 713-714; Amirault, supra at 32; United States v. Frabizio, 459 F.3d 80, 87 (1st Cir. 2006) (Frabizio). Those factors are as follows:

“1. whether the focal point of the visual depiction is on the child’s genitalia or pubic area;[⁶]

“2. whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

“3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

“4. whether the child is fully or partially clothed, or nude;

“5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

“6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.”⁷

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987). See Frabizio, supra at 87.

The standard of review is disputed by the parties. The Commonwealth contends that the Latimore standard applies because there has not been an express First Amendment challenge to the evidence. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The defendant, relying on Bean, supra at 714 & n.15, states that whether the photograph constitutes a “lewd exhibition” is subject to de nova review. We agree that Bean establishes the standard of review of the jury’s determination, and that we are required to undertake an independent review of the photographic evidence to ensure that the jury have not encroached on expression protected by the First Amendment.

Bean involved a prosecution under G. L. c. 272, § 29A, which makes it a crime for any person, acting with lascivious intent, to pose a child, knowing he or she is under eighteen years of age, in a state of nudity. The defendant, an aspiring amateur photographer, had asked a teenager to pose with her boyfriend. 435 Mass. at 709. Four of the photographs he took depicted the minor with her breast exposed. Id. at 711. These photographs were the “primary evidence” of whether the defendant had “lascivious” intent. Id. at 714-715. The court stated that in evaluating this evidence, “we determine de nova whether the photographs are themselves ‘lascivious’ or otherwise provide sufficient evidence of lascivious intent.” Id. at 714. See Amirault, 173 F.3d at 32-33. In the course of describing the nature of this independent review, the court distinguished it from the Latimore standard and stressed that “[t]he fact finder is in no better position to evaluate the content and significance of these photographs than an appellate court.” Bean, supra at 714 n.15. The court relied on a line of United States Supreme Court cases decided under the First Amendment that required an “independent appellate review of the offending material to ensure that protected speech is not infringed.” Id. at 714. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984) (in First Amendment cases “the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits”). This line of cases can be traced back to a concurrence by Justice Harlan in Roth v. United States, 354 U.S. 476 (1957), an obscenity case, in which he stated that “a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards” and “can[not] escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as ‘obscene.’ ”⁸ Id. at 497 (Harlan, J., concurring). Rather, the appellate court must exercise “its own independent judgment upon the character of the material.” Id. at 498. Independent review is required in the instant case “because photographs depicting the breast or genitals of a minor have been held to be protected by the First Amendment as long as they are not lewd or lascivious . . . .” Bean, supra at 714-715.

With these standards in mind, we evaluate the photograph at issue to determine whether it is lewd. We begin with the six Dost factors. The first is whether the focal point of the visual depiction is on the girl’s genitalia, pubic area, or breasts. As explained above, we conclude that it is. The girl’s developing left breast and nipple are in the front and center of the photograph. The girl’s left hand points the viewer to her exposed pubic area. See Frabizio, 459 F.3d at 86 (reversing decision to exclude photographs from jury’s consideration as photographs “could reasonably be seen as focusing on or particularly drawing attention to the girls’ pubic areas”). Compare Amirault, 173 F.3d at 33 (lighting and composition of “photograph [are] not primarily directed at the genital region”). The eye of the viewer is also directed to the girl’s right nipple.

The setting of the visual depiction — the beach — is not generally sexually suggestive. See ibid. The pose, however, is more problematic. On appeal, the Commonwealth contends that the left hand placement depicts the girl as “about to touch herself there or masturbate.”⁹ Although we are not prepared to adopt that interpretation, as the girl appears just to be about to dig in the sand in front of her, the direction and curve of the left hand toward her exposed pubic area could be viewed as sexually suggestive.

The girl is nude. She is also “on the cusp of puberty ... of an age when girls normally are clothed even when in nature or in a stream.” Frabizio, 459 F.3d at 86. She is well past the age of the “Coppertone girl.”¹⁰

The visual depiction of the girl does not suggest sexual coyness or a willingness to engage in sexual activity, although the placement of the left hand, as explained above, is problematic. Finally, as the over-all design of the visual depiction is to direct the viewer to the girl’s developing breasts and pubic area, and the pose could be seen as sexually suggestive, we conclude that it is designed to elicit a sexual response.¹¹

Recognizing the limitations of the Dost factors, and our obligation to ensure that First Amendment expression rights are not being infringed, our independent review of the photograph has also included a search for signs that the photograph is not a “mere snapshot!] intended to titillate potential viewers” and instead constitutes a form of artistic, educational, or other personal exhibition or expression protected by the First Amendment. Bean, 435 Mass, at 715. Although an exhibition of a child’s breasts and pubic area may still be lewd even if it is contained within a work that includes other protected First Amendment expression, see New York v. Ferber, 458 U.S. at 761, 763-764, and Bean, supra, where First Amendment rights are at issue we must approach both the lewdness determination and the suppression of the photograph with even greater circumspection.¹² We understand that such a photograph does not have to have any level of artistic or educational value to be protected. It just needs to be not lewd. The focus of this inquiry is whether, in addition to our application of the Dost factors, other evidence or characteristics of the photograph indicate that it is not lewd.

In the instant case, we discern no such signs that this photograph is other than a lewd exhibition of this girl’s breasts and pubic area. Nor was any expert or other testimony presented that raises questions in this regard. Compare Bean, supra at 715 (“consistent with the testimony of Bean’s expert in art history and theory, the photographs appear intended to have an artistic quality independent of their specific subject matter”). The picture was found on a Russian photograph-sharing Web site, not in a medical textbook, National Geographic pictorial, or in an art museum.¹³ See New York v. Ferber, 458 U.S. at 772. The photograph appears to serve no educational purpose. It displays no obvious artistic sensibilities beyond a design that focuses the viewer’s attention on the girl’s breasts and pubic area. There is no indication that the photograph is commenting in some fashion on other artistic works. See Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 967-968 (2001). Finally, and perhaps most importantly, the focus on the girl’s developing breasts and pubic area distinguishes it from ordinary family photographs simply memorializing a day at the beach. Cf. United States v. Brown, 579 F.3d 672, 684 (6th Cir. 2009), cert, denied, 130 S. Ct. 1106 (2010). If there are any expressive interests at stake in this photograph, they are de minimis. See New York v. Ferber, supra at 762.

The statutory purposes further support our conclusion that this photograph is lewd and its possession is outlawed. As the General Court stated, “[T]he sexual exploitation of children constitutes a wrongful invasion of a child’s right to privacy and results in social, developmental and emotional injury to such child.” This girl’s developing sexuality is being exploited by the taking and sharing of this revealing snapshot of her breasts and pubic area. She is on “the cusp of puberty,” Frabizio, 459 F.3d at 86, at a vulnerable stage in her sexual and emotional development, and her privacy is being invaded. She is of course readily identifiable in these photographs by anyone who knows her. The picture is also circulating in public and not concealed in a family drawer, thereby compounding the victimization of the girl. See St. 1997, c. 181, § 1 (Legislature emphasizes that all child pornography needs to be removed to protect children from invasion of privacy). The viewing of the revealing photograph amounts to a “continuing victimization” of her. St. 1997, c. 181, § 1.

The photograph need not capture the child engaged in sexual activity, and therefore sexual abuse, to violate the statute, as the dissent suggests. The Legislature refers to both sexual abuse and sexual exploitation. The State’s compelling interest in protecting children extends to their psychological and emotional well-being as well as their physical well-being. See New York v. Ferber, 458 U.S. at 757; Commonwealth v. Kenney, 449 Mass, at 848. The lewd exhibition prong of this statute in particular targets exploitation that does not involve the child engaged in sexual acts, or even simulated sexual acts. Commonwealth v. Kenney, supra at 850 n.7. The exhibition of the girl’s breasts and pubic area also need not be obscene to be lewd. Id. at 848.

In sum, although this is not a simple case involving, for example, a stark close-up of a naked child’s open genitalia, our independent review confirms that this is a lewd exhibition of a child’s breasts and pubic area and therefore an exploitation of her developing sexuality.

Jury instructions. The defendant also challenges the judge’s failure to give two jury instructions regarding the meaning of “lewd exhibition” that he repeatedly requested at trial. Those requested instructions were that “mere nudity is not enough” to constitute lewd exhibition and that the defendant’s “reaction to the photograph and why he wanted to possess it” is irrelevant to whether the photograph is a lewd exhibition. Although neither instruction was given as requested, the judge did instruct that “what [the defendant] was going to do with the material is not for you to consider . . . . It is not relevant.” See Commonwealth v. Sanders, 451 Mass. 290, 300 (2008) (“It is not necessary to give the exact words of the instruction requested by the defense”). Moreover, at the close of the case, defense counsel declared that her client was “content” with the instructions that the judge ultimately gave. We conclude that there was no error in refusing to give the mere nudity instruction, and if there was an error in the second instruction, it did not rise to the level of a substantial risk of miscarriage of justice.

The judge’s instructions tracked the statutory requirements and the Dost factors. She informed the jury that it was for them to “decide the weight, or lack of weight to be given to any of these factors.” Additionally, the judge emphasized that the factors were “not exhaustive” and provided only “some guidance.” She further informed the jury that “as far as defining lewd exhibition, the courts say that those are words that are within the ken of ordinary jurors and that they should be given the meaning that ordinarily attach to those words.” See, e.g., Frabizio, 459 F.3d at 85, quoting from United States v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990), cert. denied, 498 U.S. 1024 (1991) (“Indeed, ‘[t]here is a consensus among the courts that whether the item to be judged is lewd, lascivious, or obscene is a determination that lay persons can and should make’ ”).

We discern no error in the judge’s instructions, as they correctly summarize the law. Although it was within her discretion to give the additional instruction that mere nudity is not enough, it was not required.¹⁴ Nor would that instruction have been self-explanatory. The girl’s age and pose, and the focal points of the photograph, were all relevant considerations here in addition to the child’s nudity. Furthermore, defense counsel clearly made the “mere nudity” point in closing argument.

As for the other requested instruction, the judge and prosecutor were concerned that the defendant’s reasons for selecting the photograph were relevant to proving that the defendant knowingly printed out and possessed the photograph. That being said, the judge could have stated more clearly that the defendant’s subjective reaction to the photograph was not relevant to the jury’s determination of the lewdness of the photograph itself. Regardless, even if error, it did not create a substantial risk of a miscarriage of justice. The judge properly recited the law and the Dost factors, which adequately instructed the jury on the lewdness inquiry. In addition, both the Commonwealth and the defendant focused the jury’s attention on the “four corners” of the photograph in measuring lewdness. Cf. Frabi-zio, 459 F.3d at 89-90.

Admission of other photographs. Finally, the defendant claims reversible error based on the admission in evidence, over his objection, of a number of other photographs of children that he viewed that day at the library. The defendant contends that these photographs were improperly admitted because he did not contest his knowing possession of the photograph in question, and therefore the only issue was whether the particular photograph was lewd.

There was, however, no stipulation regarding knowing possession of the photograph. As explained in the discussion of the integrity of the grand jury process, when originally confronted by the librarian, the defendant claimed that the picture just “popped up.” Additionally, some of the photographs were of the same girl at the beach, lending some context to the photograph. The photographs were also all found in a search category for “kids,” which was relevant to whether the child was under eighteen, an issue that was contested by the defendant.¹⁵ The judge also provided a limiting instruction, charging the jury as follows:

“Any other pictures that this witness is discussing and that may be put into evidence for you to see are only to be used by you to determine whether [the defendant] intended to download this particular photograph, and whether that is the absence of mistake or inadvertence, and may be used by you secondly to go to his knowledge of what he was downloading. But it. . . should not be used at all for evidence of bad character or whether the other pictures were appropriate or not.”

A similar instruction was also given during the final jury charge at the defendant’s request. We discern no abuse of discretion in the judge’s admission of these photographs.¹⁶

Judgment affirmed.

1 Hhis was a retrial of the defendant. A previous trial on these charges had resulted in a hung jury.

2 The computer had a dedicated printer next to it.

3 Finally, although a bill of particulars cannot save a defective indictment, we note that the defendant requested and received a bill of particulars here. The bill of particulars included the statutory language set out in G. L. c. 272, § 29C(vii).

4 A second photograph of her, which was also in the Web site history viewed by the defendant but was not the basis of the prosecution, shows the girl with a naked toddler walking into the picture frame. In this photograph, the girl’s head is still pointing downward but her left arm is across and covering her left breast and her fingers are partially covering her right nipple. Her pubic area is more exposed, as this is a more frontal picture of her, and her right hand is close to, but not covering, her pubic area.

5 See United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert, denied, 484 U.S. 856 (1987).

6 The Dost factors were originally developed with reference to Federal child pornography statutes that, unlike our statute, do not include the lewd display of a child’s breast as potentially pornographic. See United States v. Dost, 636 F. Supp. at 830.

7 We note that the substance of most of these factors was incorporated by the Legislature in the context of defining lascivious intent pursuant to G. L. c. 272, § 31. See Bean, 435 Mass. at 712-713.

8 As previously explained, Roth v. United States, supra, was an obscenity case. Child pornography need not be obscene to be subject to criminal penalties. See New York v. Ferber, 458 U.S. at 756-766. See also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002). We employ the standards set out in New York v. Ferber, supra, to guide our independent review to determine whether prosecution for possession of the photographs intrudes on expression protected by the First Amendment.

9 At trial, the Commonwealth referenced the placement of the hand (“Did you pause when you saw the picture because of the position of her hand”) and argued that the pubic area, along with the developing breasts, were the “focus of the picture.”

10 The toddler depicted in the other picture of the girl at issue is, in contrast, of the age of the girl in the Coppertone advertisement.

11 It is not the defendant’s subjective reaction to the photograph that is measured in this inquiry. See Amirault, 173 F.3d at 34.

12 It was just such a concern that motivated Justice Harlan to propose an independent review in the context of obscenity. As Justice Harlan stated, “Many juries might find that Joyce’s ‘Ulysses’ or Bocaccio’s ‘Decameron’ was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems . . . .” Roth v. United States, 354 U.S. at 498 (Harlan, J., concurring).

13 In closing, defense counsel pointed to National Geographic and art museums as examples of places that contain exhibitions of naked children that are not lewd. The Commonwealth similarly closed by saying that the statute does not ban images in medical textbooks or bona fide works of art.

14 To the extent that the dissent asserts that the prosecutor’s closing argument relied on a “nudity alone” theory, the claim misses the mark. The Commonwealth’s argument was not so limited, as it addressed other Dost factors. Nor has the defendant argued on appeal that the prosecutor’s closing argument was improper. Finally, as discussed above, the judge’s instructions, which tracked the statute and referenced all of the Dost factors, were proper.

15 The other photographs also provided some limited information as to the Russian photograph-sharing site, thereby responding to the defendant’s suggestion that it was not a pornography site but an ordinary photograph-sharing service.

16 The judge also excluded many other photographs that the prosecution sought to admit from the defendant’s previous convictions. Evidence of his previous convictions was also excluded.