Opinion
19-P-883
02-17-2022
COMMONWEALTH v. Mark ENROTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In September 2017, the defendant, Mark Enroth, pleaded guilty to two counts of possession of child pornography, in violation of G. L. c. 272, § 29C. The defendant subsequently moved to vacate his guilty plea and dismiss the second count of possession of child pornography, claiming that it was duplicative and violated principles of double jeopardy. The defendant's motion was denied, as was his motion for reconsideration. We affirm the denial of each motion.
Background. In February 2017, a member of the State police's internet crimes against children task force (ICAC) discovered an Internet protocol (IP) address connected to a computer that potentially contained child pornographic files on it. The ICAC initiated an investigation and obtained a search warrant for the residential address associated with the IP address, which was the defendant's residence.
"All computers that connect to the Internet identify each other through a unique string of numbers known as an Internet protocol address." Commonwealth v. Martinez, 476 Mass. 410, 411 (2017).
The defendant resided in the home with his elderly mother.
In March 2017, the ICAC, accompanied by State police computer forensic examiners and officers from the Barnstable County Sheriff's Office, executed the search warrant for the defendant's residence. Upon arrival, the officers spoke to the defendant, and they went to the basement of the residence. In the basement, they located a "white generic viz desktop style computer" that the defendant admitted belonged to him. On that computer, the forensic examiners observed three images, each depicting a different prepubescent girl between the ages of eight and ten posing with her genitals and/or buttocks exposed. Also in the basement, the officers located a "black [Antec] desktop style computer" that the defendant also admitted belonged to him. On that computer, the forensic examiners observed three additional images -- not the same as those on the white desktop computer -- each depicting a different prepubescent girl between the ages of six and ten posing with her genitals, buttocks, and/or anus exposed. The defendant was charged with possession of the pornographic images.
On September 15, 2017, the defendant pleaded guilty to two counts of possession of child pornography, with one count premised on the photographs discovered on the white desktop computer, and the second count stemming from the photographs discovered on the black desktop computer. The defendant was sentenced to an agreed upon five years’ probation, and the agreed upon conditions of his probation prohibited him from accessing the Internet and required him to forfeit his Internet-capable devices and not repurchase such devices. On December 28, 2017, the defendant was served with a notice of a probation violation for his possession of an Internet-capable device. Following a hearing, the defendant was found to be in violation of his probation; his probation was revoked; and he was sentenced on each count of possession of child pornography to a term of two and one-half years in the house of correction, to be served consecutively.
The defendant and the Commonwealth agreed upon the defendant's plea and the proposed disposition prior to the plea hearing. Notably, the motion judge concluded, the defendant's plea "limit[ed] the possibility [that] he would be indicted or lose at trial, either of which events may have resulted in immediate incarceration or incarceration for a longer period."
Thereafter, on August 28, 2019, the defendant moved to vacate and dismiss the second count of possession of child pornography, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), claiming that it was duplicative of count one and that it violated the prohibition against double jeopardy. Following a hearing, a District Court judge disagreed and concluded that the defendant's convictions were not duplicative because each conviction rested on different photographs which were stored on two separate computers. The defendant's motion was denied, following which he filed a motion for reconsideration. The motion for reconsideration was also denied, and this appeal ensued.
The judge also relied on the fact that the photographs were downloaded at different times, however, during the plea colloquy, the Commonwealth did not make any representations regarding the timing in which the images were downloaded.
Discussion. "The double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law preclude the imposition of multiple punishments for the commission of a single crime." Commonwealth v. Rollins, 470 Mass. 66, 70 (2014). "[M]ultiple punishments" are those "in excess of what a Legislature intended to be the punishment for a particular offense." Id. Whereas here, a single statute is involved -- G. L. c. 272, § 29C -- it must be determined "what ‘unit of prosecution’ was intended by the Legislature as the punishable act." Commonwealth v. Traylor, 472 Mass. 260, 268 (2015), quoting Commonwealth v. Botev, 79 Mass. App. Ct. 281, 286 (2011). The defendant argues that the Legislature intended his conduct -- the possession of child pornography at the same time, in the same location, on two devices of the same format -- to constitute a single unit of prosecution for the possession of child pornography. We disagree.
The Supreme Judicial Court has determined that, in enacting G. L. c. 272, § 29C, the Legislature intended "a defendant's possession of a single cache of one hundred offending photographs in the same place at the same time" to constitute a single unit of prosecution for the possession of child pornography (emphasis added). Rollins, 470 Mass. at 74. In Rollins, the defendant was charged with and convicted of six counts of possession of child pornography for possessing seven offending photographs on one computer simultaneously. Id. at 69. The Supreme Judicial Court determined that the defendant's possession of multiple images in the same cache at the same time constituted a "singular act of possession," and thus "[t]he imposition of six convictions and sentences ... violated the guaranty against double jeopardy." Id. at 75.
By contrast, here, the defendant's possession was not singular. He possessed multiple offending images on two separate and distinct computers, and there is nothing in the record to suggest that the white and black desktop computers were in some way linked to one another. Cf. United States v. Chiaradio, 684 F.3d 265, 276 (1st Cir. 2012) (defendant's "possession of multitude of files on two interlinked computers located in separate rooms within the same dwelling gave rise to only a single count of unlawful possession under [ 18 U.S.C. § 2252(a)(4)(B) ]"). Nor does the record reflect that the photographs were all part of one singular collection. See Commonwealth v. Wassilie, 482 Mass. 562, 566 (2019) (proper unit of prosecution for possession of child pornography is "the collection as a whole"). To the contrary, the record reveals that the defendant was prosecuted for three distinct photographs found on the white desktop computer, and three different and distinct photographs found on the black desktop computer. Thus, there were two separate caches of offending photographs constituting two units of prosecution for possession of child pornography under G. L. c. 272, § 29C. The fact that the two caches of images were both stored on similar devices, i.e., desktop computers, does not render their possession a singular act. Compare id. at 74 & n.5, with Commonwealth v. Dingle, 73 Mass. App. Ct. 274, 283 (2008) (no double jeopardy violation where defendant faced three charges of possession of child pornography with intent to distribute, each corresponding to different media upon which images stored).
Order denying motion to vacate and dismiss affirmed.
Order denying motion for reconsideration affirmed.