Commonwealth v. Cooper
| Decision Date | 08 October 2021 |
| Docket Number | 19-P-1806 |
| Citation | 177 N.E.3d 1230,100 Mass.App.Ct. 345 |
| Parties | COMMONWEALTH v. Markus COOPER. |
| Court | Appeals Court of Massachusetts |
Michelle Menken, for the defendant.
Susan M. Oftring, Assistant District Attorney, for the Commonwealth.
Present: Massing, Sacks, & Singh, JJ.
A student at the University of Massachusetts (UMass) Medical School was urinating in a stall in a women's bathroom when she noticed a cell phone camera being pointed down at her from over the top of the stall and heard what she believed to be the camera clicking. Based on this incident, a jury convicted the defendant, Markus Cooper, of one count of photographing a person who is nude or partially nude, see G. L. c. 272, § 105 (b ), first par., and one count of disorderly conduct, see G. L. c. 272, § 53 (b ). In this appeal we consider, among other issues, whether the Commonwealth can prove a violation of the first paragraph of G. L. c. 272, § 105 (b ), without producing a photograph of the victim. We conclude that the evidence was sufficient to convict the defendant of all counts and that the defendant's claims of error with respect to the prosecutor's closing argument do not warrant reversal.
Background. We recite the facts in the "light most favorable to the Commonwealth," Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), reserving certain details for later discussion.
The victim was urinating in a private stall in the women's room on the fourth floor of the medical school's Albert Sherman Center, squatting above the toilet with her shorts pulled down, when she saw a man's shoe at the base of the stall. She looked up and saw a cell phone camera "peering into the stall" and "one knuckle" of a hand. She then
The victim screamed, "What are you doing?" and then "heard someone run out of the bathroom." She pulled up her shorts so quickly that she urinated on herself, then left the bathroom. She noticed that the nearby "men's room door was open but on its way to close and [she] saw in the mirror somebody in the men's room hastily getting into a bathroom stall." The victim stood at the door of the men's room and asked the person, the defendant, what he was doing. He replied that he had been on his cell phone and had gone into the wrong restroom. The victim asked to see the defendant's phone, which he took from his pocket, "briefly engaged," and placed back into his pocket, saying, "I didn't take any pictures of you."
The victim asked the defendant to accompany her to security. When he refused, she asked to see his medical school identification badge so she could report his name and department. The defendant said, "I'm not giving you my badge and if you knew who I was, then you wouldn't be doing this." The defendant was, in fact, a physician and medical school assistant professor with an office on the seventh floor of the same building. The defendant left the bathroom and entered the adjacent stairwell, the victim following him. She introduced herself as a medical student and again asked for his name, which he refused to give. The defendant went down a flight of stairs, gaining speed as he went. The victim asked a woman she encountered in the stairwell to help her. The defendant exited the stairwell and ran across the third floor with the two women in pursuit. Although they lost sight of him, security footage showed the defendant crossing a bridge linking the Sherman Center building to the parking garage, getting into his car, and driving away.
The victim called security from the medical school library and gave a statement to UMass police. Meanwhile, the defendant called security from his car and asked for directions to the campus police station. He arrived at the station about thirteen minutes later, where he also gave a statement. An officer asked to see the defendant's cell phone; the defendant entered his passcode and handed the phone to the officer. The officer did not find any photographs of the victim on the defendant's phone.1
Discussion. 1. Photographing a person who is nude or partially nude. The first paragraph of G. L. c. 272, § 105 (b ), provides:
"Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person's knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment."
At trial, the Commonwealth argued that the defendant photographed the partially nude victim with his cell phone while she was urinating in the women's bathroom and deleted the photograph before he appeared at the campus police station to give a statement. The defendant contends that because the Commonwealth did not produce a photograph of the victim in a state of partial nudity, the evidence was insufficient, showing at most an attempt to photograph the victim.2
In reviewing the sufficiency of the evidence, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt ." Latimore, 378 Mass. at 677, 393 N.E.2d 370, quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "A conviction may be based on circumstantial evidence and the permissible inferences drawn therefrom."
Commonwealth v. Roy, 464 Mass. 818, 824, 985 N.E.2d 1164 (2013). "A permissible inference is one that is ‘reasonable and possible’; it need not be ‘necessary or inescapable.’ " Id., quoting Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). Where the evidence permits conflicting inferences, "it is for the jury to determine where the truth lies." Commonwealth v. Witkowski, 487 Mass. 675, 681 n.6, 169 N.E.3d 496 (2021), quoting Commonwealth v. Garuti, 454 Mass. 48, 55, 907 N.E.2d 221 (2009).
To prove a violation of the first paragraph of § 105 (b ),3 the Commonwealth must show "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." Commonwealth v. Castro, 99 Mass. App. Ct. 502, 505, 169 N.E.3d 524 (2021). Only the first element is in dispute.
Nothing in the plain language of the first paragraph of § 105 (b ) requires the Commonwealth to produce a photograph depicting a nude or partially nude person. "A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Commonwealth v. Wassilie, 482 Mass. 562, 573, 125 N.E.3d 682 (2019), quoting Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001). Section 105 (b ) criminalizes the act of "photograph[ing], videotap[ing] or electronically surveil[ling]." G. L. c. 272, § 105 (b ). See Commonwealth v. Robertson, 467 Mass. 371, 377-378, 5 N.E.3d 522 (2014), quoting G. L. c. 272, § 105 (b ) . Section § 105 (c ), by contrast, penalizes dissemination of a "visual image" obtained in violation of § 105 (b ). See G. L. c. 272, § 105 (c ).
The difference between the crime of photographing an unsuspecting person in a state of nudity or partial nudity under § 105 (b ) and the crime of disseminating a "visual image" so obtained under § 105 (c ) is the same difference that exists between posing a child in a state of nudity in violation of G. L. c. 272, § 29A, and disseminating or possessing child pornography in violation of G. L. c. 272, § 29B or § 29C. "[T]he harm sought to be proscribed by § 29A is the conduct involved in photographing a child nude or semi-nude, not the photographs themselves." Commonwealth v. Oakes, 407 Mass. 92, 97, 551 N.E.2d 910 (1990). Likewise, the focus of § 105 (b ) is on Wassilie, 482 Mass. at 570, 125 N.E.3d 682.
The violation of the victim's privacy was accomplished when the defendant pointed his camera at her and snapped her photograph.
The defendant further argues that without a photograph, the Commonwealth can prove no more than an attempt; it cannot prove that the defendant completed the act. He posits that "[t]he attempt might have resulted in a ‘misfire’ -- i.e., an image was captured but it did not include [the victim] ... -- or in no image at all." We conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant photographed the victim in a state of partial nudity.
"The fact that there is no direct evidence ... does not render the evidence incompetent." Commonwealth v. Marquetty, 416 Mass. 445, 452, 622 N.E.2d 632 (1993). See Commonwealth v. Manzelli, 68 Mass. App. Ct. 691, 693-694, 864 N.E.2d 566 (2007) ()....
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