Opinion
No. 11–P–1097.
2012-08-27
COMMONWEALTH v. Chad M. KLAIBER.
G.L. c. 272, § 31, as amended by St.1982, c. 603, § 7. See Miller v. California, 413 U.S. 15, 21 (1973); Commonwealth v. Militello, 66 Mass.App.Ct. 325, 332 (2006).
By the Court (BERRY, KAFKER & MILLS, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the revocation of his probation. Finding that the defendant had disseminated obscene material, G.L. c. 272, § 29, the judge revoked his probation on the underlying convictions. We conclude that the defendant's appellate contention is correct, and that the evidence was insufficient to prove by a preponderance obscenity under G.L. c. 272, § 29. Accordingly, we reverse the order revoking probation.
1. Notice. From all that appears, there was an error in stating, in the notice of probation violation, the offense that was to be the predicate for the probation violation. The notice of probation violation and hearing form listed a criminal complaint number relating to G.L. c. 272, § 29, for dissemination of obscene material and referred to “Obscene Matter, Distribute.” The notice did not refer to the offense of disseminating material harmful to a minor, G.L. c. 272, § 28—an offense for which the evidence likely would have supported a probation revocation, and the criminal offense with which the Commonwealth represented at oral argument the defendant was subsequently charged.
The complaint and notice of probation detention hearing also listed disorderly conduct, which is not pertinent to our analysis.
Furthermore, at the probation revocation hearing, the Commonwealth stated that it was not seeking to revoke probation based on G.L. c. 272, § 28, but rather was proceeding on dissemination of obscene material pursuant to G.L. c. 272, § 29. Defense counsel also proceeded as if the predicate offense was § 29, not § 28. To this end, defense counsel was effective and diligent in objecting to evidence that would have been relevant to the § 28 dissemination to a minor charge, including continuing objections to the introduction of evidence related to the victim's status as a minor, because it was not relevant to the crime of disseminating obscene material. Finally and significantly, the probation violation finding and disposition form indicates that the judge found a violation of G.L. c. 272, § 29, based on the defendant's dissemination of obscene material.
The Commonwealth argues that even if the defendant's actions were not sufficient to support a finding of disseminating obscene material under G.L. c. 272, § 29, the probation revocation was still proper because the evidence was adequate to find that the defendant violated the uncharged crime of disseminating material harmful to a minor under G.L. c. 272, § 28. That proposition is not sustainable. See, e.g., Commonwealth v. Negron, 441 Mass. 685, 690 (2004) (citation omitted) (“minimum requirements of due process include [a] written notice of the claimed violations of [probation or] parole”). Accord Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131 (2000); Commonwealth v. Herrera, 52 Mass.App.Ct. 294, 295 (2001).
2. Sufficiency of the evidence concerning obscene material.General Laws c. 272, § 29, as appearing in St.1982, c. 603, § 3, states that “[w]hoever disseminates any matter which is obscene, knowing it to be obscene, or whoever has in his possession any matter which is obscene, knowing it to be obscene, with the intent to disseminate the same, shall be punished....” “Obscene” is defined as matter that taken as a whole,
“(1) appeals to the prurient interest of the average person applying the contemporary standards of the county where the offense was committed;
“(2) depicts or describes sexual conduct in a patently offensive way; and
“(3) lacks serious literary, artistic, political or scientific value.”
G.L. c. 272, § 31, as amended by St.1982, c. 603, § 7. See Miller v. California, 413 U.S. 15, 21 (1973); Commonwealth v. Militello, 66 Mass.App.Ct. 325, 332 (2006).
The statute is conjunctive, therefore all elements must be satisfied for material to be labeled obscene. “Sexual conduct” is defined in G.L. c. 272, § 31, as amended by St.1988, c. 226, § 7, as
“human masturbation, sexual intercourse, actual or simulated, normal or perverted, any lewd exhibitions of the genitals, flagellation or torture in the context of a sexual relationship, any lewd touching of the genitals, pubic areas, or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals, and any depiction or representation of excretory functions in the context of a sexual relationship....”
In this case, the defendant approached Amy,
a girl of approximately fifteen years of age, at a playground and asked her if she “shaved [her] pussy,” what the size of her breasts were, and whether she would “go out with him.” While this communication by the defendant was sexually explicit, the words spoken were not the basis for the obscenity charge. Rather, after this verbally inappropriate exchange, the defendant left the playground only to return to show Amy a picture of a penis on his cell phone camera.
A pseudonym.
There was, however, no evidence that the penis was erect, in a state of ejaculation, that the person depicted was masturbating, or that any other person or object appeared in the photograph. A picture depicting solely genitalia, without more, is not deemed to be a “lewd exhibition of the genitals” that is “patently offensive” “sexual conduct” under the second element of G.L. c. 272, § 29. As stated, if this element, or any element of the statute, is not met, then the material is not obscene as a matter of law.
In Commonwealth v. Militello, 66 Mass.App.Ct. at 330, the defendant showed pictures from an issue of Playboy magazine depicting women naked “on the top and the bottom” to several children. In rejecting the argument that the Playboy pictures were “obscene” under G.L. c. 272, § 31, this court stated that “[n]othing in the testimony suggests that the photographs shown to the boys depicted or described sexual conduct in any way, much less in a patently offensive way” (emphasis added). Id. at 332. While the testimony in Militello did not establish that the pictures definitively showed genitalia, the photographs did show women nude on the “top and the bottom.”
Additionally, in Commonwealth v. Kereakoglow, 456 Mass. 225, 228 n.6 (2010), the Supreme Judicial Court dealt with a factual scenario where the defendant had sent a fifteen year old a picture that “prominently displayed the defendant's genitals.” The resolution of that case depended on an erroneous jury instruction that concerned whether the images were “patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for ... minors,” not on whether the images were “obscene.” Id. at 228–229. However, the court noted that the picture was “not obscene” under G.L. c. 272, § 31. Id. at 228 n.6.
The Commonwealth argues that we should consider the context in which the picture was displayed. But, under the second element of G .L. c. 272, § 29, the necessary underpinning of “patently offensive” standard is that the matter must “depict[ ] or describe[ ] sexual conduct.” The fact that the defendant asked Amy sexually charged questions before showing her the picture does not change the content of the photograph in question. Irrespective of the defendant's statements to Amy, the picture still depicted only naked male genitalia.
While the defendant's actions were reprehensible, and, as previously noted likely were a probation violation for offending G.L. c. 272, § 28 (which was not charged), there was not sufficient evidence to prove a violation of G.L. c. 272, § 29. Accordingly, the order revoking probation is not sustainable.
Order revoking probation reversed.