Com. v. Lawrence, 05-P-1172.

• Decision Date: 23 January 2007
• Docket Number: No. 05-P-1172.,05-P-1172.
• Citation: 68 Mass. App. Ct. 103,860 N.E.2d 45
• Parties: COMMONWEALTH v. Eva M. LAWRENCE.
• Court: Appeals Court of Massachusetts

860 N.E.2d 45

68 Mass. App. Ct. 103

COMMONWEALTH v. Eva M. LAWRENCE.

No. 05-P-1172.

Appeals Court of Massachusetts, Berkshire.

Argued November 13, 2006.

Decided January 23, 2007.

Karen L. Carlo, Assistant District Attorney, for the Commonwealth.

William A. Korman, Boston, for the defendant.

Present: RAPOZA, C.J., ARMSTRONG, & DREBEN, JJ.

ARMSTRONG, J.

The defendant was charged and found (after a bench trial) guilty of indecent assault and battery on a child under fourteen years of age, G.L. c. 265, § 13B, and posing a child in a state of nudity, G.L. c. 272, § 29A(a). The victim — ten years old at the time of trial—was the daughter of the defendant and, as the only other person with first-hand knowledge, the principal witness for the Commonwealth. The victim's testimony was to the effect that on a number of occasions when she slept in the defendant's bed, she would wake up at night to find her pajamas pulled down exposing her "private," which she said was where "pee" comes from. The defendant would be photographing and sometimes touching her "private." The victim saw photographs of herself in the exposed pose on the defendant's computer screen, on which she saw also photographs of the defendant posing nude. The defendant testified that she had acknowledged to police that she sometimes took nude photographs of herself, but she categorically denied taking nude photographs of the victim or touching her "private."

1. Sufficiency of evidence. The victim's testimony was sufficient evidence of both charges. As to the indecent assault and battery charge, the touching of the vaginal area, although by the victim's mother, was shown to be indecent by the circumstances in which it occurred—the arrangement of clothing so as to expose, the photography, and the victim's protests ("I told her to stop"), reactions of mood (it made me feel "sad"), and feeling of shame (not telling her father because "it was hard to talk about").

Pursuant to G.L. c. 272, § 29A(a), the posing charge has four elements: (1) knowledge that the person posed is under age eighteen; (2) causing the child to pose in a state of nudity, defined in G.L. c. 272, § 31, as appearing in St.1988, c. 226, § 5, to include "uncovered ... human genitals [][or] pubic areas"; (3) a purpose of representation or reproduction in any visual material; and (4) lascivious intent. The defendant argues that the Commonwealth did not sustain its burden to prove lascivious intent because it did not put in evidence even a single photograph or depiction of the victim nude from which an inference of lascivious intent could be drawn. It is impossible to sustain a conviction, the defendant argues, unless the finder of fact can view the photographs or other depictions.

The defendant cites no authority for a per se rule that the fact finder must be able to view an unlawful depiction in order to find a defendant guilty. The gist of the § 29A(a) offense is not the depiction but, rather, the posing of the child for the purpose of depiction, with the requisite intent—a crime which would seem to be complete even if no depiction materializes, due to a lack of film, for example, or a malfunctioning camera. The definition section of the statute, § 31, defines "lascivious intent" as "a state of mind in which the sexual gratification or arousal ... is an objective." G.L. c. 272, § 31, inserted by St.1988, c. 226, § 3. The definition goes on to list six "factors" as indicia of lascivious intent, but these could be...