Commonwealth v. Buswell

• Decision Date: 13 May 2014
• Docket Number: SJC–11378.
• Citation: 468 Mass. 92,9 N.E.3d 276
• Parties: COMMONWEALTH v. Michael D. BUSWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

468 Mass. 92

9 N.E.3d 276

COMMONWEALTH

v.Michael D. BUSWELL.

SJC–11378.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Jan. 6, 2014.

Decided May 13, 2014.

Jason Benzaken, Brockton, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

A Superior Court jury found the defendant guilty on one indictment charging enticement of a child under the age of sixteen, G.L. c. 265, § 26C, and four indictments charging attempts to commit certain offenses, G.L. c. 274, § 6.¹ The offenses underlying the convictions of attempt were rape of a child under the age of sixteen, G.L. c. 265, § 23; indecent assault and battery on a child under the age of fourteen, G.L. c. 265, § 13B; and two charges of disseminating matter harmful to a minor, G.L. c. 272, § 28. The defendant's motions for required findings of not guilty were denied. In his direct appeal, the defendant argued that the Commonwealth failed to provide sufficient evidence of an overt act, a necessary element to establish attempted rape of a child and attempted indecent assault and battery on a child, and that his electronically transmitted “conversation” did not constitute “matter” under the terms of G.L. c. 272, § 28, so that the Commonwealth had not met its burden of proof to establish dissemination of matter harmful to a minor. The defendant also argued that certain evidence obtained following a forensic examination of his computer should have been suppressed or excluded at trial, and that the Commonwealth failed to provide evidence of a predisposition to commit the charged offenses sufficient to overcome his defense of entrapment. In a divided opinion, a majority of the Appeals Court affirmed the convictions of enticement of a child, attempted rape, and attempted indecent assault and battery, and reversed the convictions of attempted dissemination of matter harmful to a minor. Commonwealth v. Buswell, 83 Mass.App.Ct. 1, 16, 979 N.E.2d 768 (2012). We granted the defendant's application for further appellate review. For the reasons set forth below, we affirm the conviction of enticement of a child and reverse the convictions of attempt.

Background. In May, 2006, Plymouth County deputy sheriff Melissa Marino conducted an undercover investigation, using the Internet, of individuals seeking to have sex with minor children. Posing as a thirteen year old girl, she set up an online profile under the screen name “melissaqt1995.” Using this screen name, Marino engaged in three electronic “instant message” ² conversations with the defendant; the transcripts of these conversations were introduced at trial.

On May 10, 2006, Marino used the online profile to enter a “Massachusetts-based romance chat room.” The defendant, who was twenty years old at the time, sent an instant message to Marino under the screen name “redline_5k,” thereby initiating a conversation with her. Early in that conversation, Marino described herself as being thirteen years old, and the defendant acknowledged her age. The defendant requested a photograph of Marino, and Marino electronically transmitted a photograph of herself at age thirteen. After some discussion, the defendant jokingly asked, “[D]on[']t you just [want to] date me?” When Marino responded, “[S]ure [why] not,” the defendant explained that he might want things that Marino could not give him due to her age, such as “sex for one.” Marino stated that she had had sex previously. The defendant described the size of his penis and said, “[I] know how to work it.” He asked Marino, “[You] suck cock?” He also asked if Marino had any more photographs of herself, and Marino provided a second photograph of herself at age thirteen. Later in the conversation, the defendant asked Marino, “[W]ould you give me a [blow job] while I was driving?” Marino said that she would, and the defendant responded, “[N]ice. I haven't been laid in months. I could use some sex.”

During the conversation, the defendant also expressed doubt about whether he should date Marino, stating that it would be “illegal” because of her age. After discussing the possibility of talking via the telephone, the defendant suggested that they hold off, stating, “[I]'m not a trusting person” and “[I] take things slow.” Marino responded that the defendant “sound[ed] like a girl.”

On May 15, 2006, Marino sent the defendant an instant message, initiating a second online conversation. Marino told the defendant that she might have a party that summer because her mother was going away for a wedding and Marino would have the apartment to herself. The defendant asked if he could come to the party and sleep over.

The next day, Marino began a third online conversation with the defendant. The defendant confirmed that he could sleep at Marino's apartment when her mother was away during the summer. When Marino stated that she would be nervous upon first meeting him, the defendant asked, “[W]hat if I showed up naked, would you still be nervous?” The defendant also asked if Marino thought they would have sex and if she wanted to do so. Marino responded affirmatively and inquired whether the defendant would “re[a]lly do that.” The defendant answered, “[I don't know. It is] tempt[ing]. [I] pro[bab]ly would.”

Later in the conversation, the defendant asked, “[W]ould you have sex with me tonight?” Marino answered that she would if the defendant wanted to, and the defendant responded, “[I] think [I] would.” However, he also expressed reservations, stat ing, “[I]f [I] have sex with you, [I] could go [ ] to jail.” He added, “[I']d almost rather just hang out honestly. [M]aybe not sex tonight. [S]o [I] can trust you.... [T]he whole legal thing is killing my consci[ence].” Marino promised that she would not tell anyone. She explained that her mother was working late and would not arrive home until midnight.

When the defendant asked if he could telephone Marino, she gave him an undercover police telephone number. The defendant was hesitant about placing a call, expressing concern that Marino might be “a cop.” The defendant requested Marino's address, and she told the defendant that she lived in an apartment complex on Franks Lane in Hanover. Marino emphasized a number of times that it was “up to” the defendant whether they had sex that night. The defendant looked up the directions to the apartment complex, determined that it would take him forty-four minutes to drive there, and told Marino that he would call her shortly. The conversation ended at 6:38 p.m.

Sometime after the conversation ended, the defendant “jumped in [his] truck and took off.” At approximately 7:55 p.m., Marino received a telephone call from the defendant. He stated that he still felt very nervous about coming to her apartment. He also told Marino that he had a condom. At approximately 8:32 p.m., Marino received a second telephone call from the defendant. Marino requested that they change the meeting location from the apartment complex to a nearby video game store, and the defendant agreed. ³ Shortly after the second telephone call, the defendant drove into the store's parking lot, where he was arrested. Police recovered handwritten directions to Franks Lane and a package of condoms containing one unopened condom from the defendant's truck.

Discussion. In reviewing a claim of insufficient evidence, we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979).

1. Attempted rape and attempted indecent assault and battery. The defendant argues that the Commonwealth failed to introduce sufficient evidence of an overt act to support the convictions of attempted rape and attempted indecent assault and battery. To establish an attempt under G.L. c. 274, § 6, the Commonwealth must prove “an intention to commit the underlying offense, [and] also an overt act toward its commission.” Commonwealth v. Marzilli, 457 Mass. 64, 66, 927 N.E.2d 993 (2010), quoting Commonwealth v. Ortiz, 408 Mass. 463, 470, 560 N.E.2d 698 (1990).

We have interpreted the attempt statute consistently for more than one hundred years, dating back to the opinions authored by Chief Justice Holmes in Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770 (1897), and Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901) ( Peaslee ). See Commonwealth v. Bell, 455 Mass. 408, 412, 917 N.E.2d 740 (2009) ( Bell ). As Chief Justice Holmes observed at that time, “the aim of the law is not to punish sins, but is to prevent certain external results.” Commonwealth v. Kennedy, supra at 20, 48 N.E. 770. When an individual prepares to commit a crime but has not undertaken the last act necessary to accomplish it, the preparation will qualify as an attempt only if it “comes very near to the accomplishment of the [crime such that] the intent to complete it renders the crime [sufficiently] probable.” Bell, supra at 413, 917 N.E.2d 740, quoting Peaslee, supra at 272, 59 N.E. 55. Because “a defendant must have the present opportunity to commit the substantive crime ..., we look to the actions left to be taken, or the ‘distance or gap between the defendant's actions and the (unachieved) goal of the consummated crime—the distance must be relatively short, the gap narrow.’ ” Bell, supra at 415, 917 N.E.2d 740, quoting Commonwealth v. Hamel, 52 Mass.App.Ct. 250, 258, 752 N.E.2d 808 (2001). The necessary proximity between a defendant's actions and the completed offense varies with the circumstances; in determining whether a defendant's conduct came sufficiently close to accomplishing a crime so as to warrant punishment as an attempt, we weigh “the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger” to the...