Commonwealth v. Castro

• Decision Date: 27 April 2021
• Docket Number: No. 20-P-206,20-P-206
• Citation: 169 N.E.3d 524,99 Mass.App.Ct. 502
• Parties: COMMONWEALTH v. Cesar CASTRO.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 502

169 N.E.3d 524

COMMONWEALTH

v.Cesar CASTRO.

No. 20-P-206

Appeals Court of Massachusetts, Suffolk.

Argued January 5, 2021.

Decided April 27, 2021.

Rachel T. Rose, Boston, for the defendant.

Kathryn Sherman, Assistant District Attorney, for the Commonwealth.

Present: Meade, Milkey, & Neyman, JJ.

NEYMAN, J.

Following a trial in the District Court, a jury convicted the defendant, Cesar Castro, of photographing an unsuspecting nude or partially nude person in violation of G. L. c. 272, § 105 (b ). On appeal, the defendant challenges the sufficiency of the evidence, the admission of certain exhibits on authentication grounds, and the constitutionality of the first paragraph of § 105 (b ). We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). In or around 2012 or 2013, the defendant and the victim entered into a relationship. "At first it was just a friendship, but then ... [they] became romantically involved." Although their "romantic relationship ended in 2015," on "bad terms," they still communicated on occasion through text messages.

In October 2017, the victim went on vacation in Mexico to celebrate her birthday with her new boyfriend. On October 12, during her return flight to Boston, she received notification of Instagram messages¹ from the defendant on her cell phone. The victim recognized the Instagram account as the defendant's because she had "follow[ed]" the account; the account name, "letitflyceez," had always belonged to the defendant; the profile photograph in the "icon" on the account was a photograph of the defendant; and she had seen the defendant "post personal things on this account before." Upon arrival in Boston, the victim opened the Instagram direct messages and saw "a thread of messages that he had sent." The first Instagram message included a "screenshot" of text messages that the defendant had sent to the victim's cell phone to wish her a happy birthday.² The second Instagram message from the defendant said, "Wow, can't even say nothing back." The following message from the defendant contained "a photo, directly from the ... [defendant's] Instagram account." The photograph showed the victim partially unclothed while lying in bed in the defendant's apartment, and apparently sleeping.³ The words, "Maybe you'll reply now," were displayed across the photograph.

After seeing the photograph, the victim "[f]reaked out, started crying, [and] started calling [her] best friend to ask her for advice." She felt "threatened" and "scared." The victim did not know the date on which the defendant took the photograph of her. She had never seen the photograph, was not aware that the defendant had taken the photograph, did not know that the photograph existed prior to receiving the message, did not consent to the taking of the photograph, did not want the photograph to be taken, and had "never taken a nude picture."

After viewing the photograph, the victim asked the defendant, via text message, "What're your intentions with that photo[?]" The defendant did not respond. The victim then contacted the police.

Discussion. 1. Sufficiency of evidence. The defendant argues that the Commonwealth presented insufficient evidence to sustain a conviction for photographing an unsuspecting nude or partially nude person. We apply the familiar test to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis and citation omitted). Latimore, 378 Mass. at 677, 393 N.E.2d 370. "If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province." Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005). See Commonwealth v. Nelson, 370 Mass. 192, 203, 346 N.E.2d 839 (1976) (evidence need not require jury to draw inference; sufficient that evidence permits inference to be drawn). See also E.B. Cypher, Criminal Practice and Procedure § 37.10 (4th ed. 2014).

To establish a violation of the first paragraph of G. L. c. 272, § 105 (b ),⁴ the Commonwealth must prove that the defendant (1) willfully photographed, videotaped, or electronically surveilled; (2) another person who was nude or partially nude; (3) with intent to secretly conduct or hide his activity; (4) when the other person was in a place and circumstance where she or he would have a reasonable expectation of privacy in not being so photographed; and (5) without the other person's knowledge or consent.⁵ See Commonwealth v. Robertson, 467 Mass. 371, 375-376, 5 N.E.3d 522 (2014). The defendant does not dispute the sufficiency of the evidence as to the first two elements -- that he willfully photographed the victim, or that she was partially nude at that time.⁶ Rather, he argues that the evidence was insufficient to prove the final three elements delineated above -- that he took the photograph without the victim's knowledge or consent, that the victim had a reasonable expectation of privacy when the photograph was taken, and that he took the photograph with the intent to secretly conduct or hide his activity.⁷ We discuss the proof of each element in turn.

We need not dwell at length on the defendant's assertion that the Commonwealth failed to prove that he took the photograph without the victim's knowledge or consent. Apart from conclusory assertions that there was no such evidence, and that the victim "did not testify that she had told [the defendant] never to take such a photo," the defendant devotes no analysis of this issue in his brief. See Tinsley v. Framingham, 485 Mass. 760, 766 n.13, 152 N.E.3d 713 (2020), citing Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019) (argument made "in passing ... does not present any adequate appellate argument on the point"); Commonwealth v. Norman, 87 Mass. App. Ct. 344, 347 n.6, 30 N.E.3d 121 (2015) (single unsupported sentence in defendant's brief "does not rise to appellate argument that we need consider"); Commonwealth v. Ciaramitaro, 26 Mass. App. Ct. 110, 114 n.5, 524 N.E.2d 116 (1988) (same).

Furthermore, and contrary to the defendant's claim, the victim testified that she was not aware that the defendant had taken the partially nude photograph, did not want the photograph to be taken, had never taken nude photographs, was "sleeping" in the photograph, and did not know of the existence of the photograph prior to receiving the Instagram message. This testimony alone was sufficient, under the Latimore standard, to prove that the defendant acted without the victim's knowledge or consent. The victim's reaction of shock and fear upon viewing the photograph further speaks to her lack of knowledge or consent.⁸ See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 433, 840 N.E.2d 1010 (2006) ("we do not require an explicit verbal or physical rebuff to prove lack of consent. Instead, we analyze lack of consent based on the totality of the circumstances"). See also Commonwealth v. Arana, 453 Mass. 214, 225, 901 N.E.2d 99 (2009) ("Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case").

The defendant next argues that the Commonwealth failed to prove that the victim was "in such place and circumstance" where she "would have a reasonable expectation of privacy in not being so photographed." G. L. c. 272, § 105 (b ). The defendant maintains that in view of the then-intimate relationship between the defendant and the victim, and the absence of evidence of any specific ban on nude photography in their relationship, the victim did not have a reasonable expectation of privacy in the bedroom of her boyfriend's apartment. To the contrary, he contends, "the bedroom is exactly where nude photos are most likely to be taken." In effect, the defendant argues that, barring evidence of an explicit prohibition on such activity, if one can see something in his or her bedroom, one can photograph, videotape, or memorialize it. The argument is unavailing.

The defendant's argument misperceives the requirements of the statutory element. As the Supreme Judicial Court has explained, § 105 (b ) requires that the person being photographed be "present in a place, private or not, where in the particular circumstances she would have a reasonable expectation of privacy in not being wilfully and secretly photographed while in that state" (emphasis added). Robertson, 467 Mass. at 380, 5 N.E.3d 522. Thus, the language of § 105 (b ) does not speak to a generalized expectation of privacy, but to the reasonable expectation of privacy in not being "secretly" photographed, while nude or partially nude, in that "place and circumstance." Here, the victim was sleeping in her boyfriend's bedroom, a private place, and had a reasonable expectation of privacy in not having her partially naked body so photographed. See id. at 379-380, 5 N.E.3d 522. Simply because the victim was sleeping partially nude did not mean that she agreed to allow her body to be preserved in a photographic image, with the concurrent risk that the preserved image might be shared, displayed, or used for any other purpose in perpetuity. A person does not forever forfeit all privacy rights, without limitation, by engaging in intimate or personal contact with another. Cf. Commonwealth v. Nascimento, 91 Mass. App. Ct. 665, 667, 79 N.E.3d 1075 (2017) ("A person does not lose all reasonable expectation of privacy in his or her covered ‘sexual or intimate parts’ simply by being in public").

The defendant next argues that there was insufficient evidence that he took the photograph "with the intent to secretly conduct or hide such activity." The defendant claims that...