Commonwealth v. Disler

• Decision Date: 18 April 2008
• Docket Number: SJC-09846
• Citation: 451 Mass. 216,884 N.E.2d 500
• Parties: COMMONWEALTH v. Richard DISLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

884 N.E.2d 500

451 Mass. 216

COMMONWEALTH v. Richard DISLER.

SJC-09846

Supreme Judicial Court of Massachusetts, Essex.

Argued September 4, 2007.

Decided April 18, 2008.

James B. Krasnoo, Andover, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Claudia Leis Bolgen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

IRELAND, J.

This case requires us to interpret, for the first time, G.L. c. 265, § 26C, the child enticement statute. In September, 2005, following a bench trial, the defendant was found guilty of one indictment charging child enticement. His conviction was based on a series of electronic "instant messages" he exchanged with undercover police officers who were posing as a fourteen year old girl. The defendant was sentenced to probation for three years, prohibited from having unsupervised contact with children under the age of sixteen, and required to register as a sex offender. He appealed and we granted his application for direct appellate review.

The defendant argues that the statute is unconstitutional; that it was impossible to convict him because no child under sixteen years of age actually existed; that there was insufficient evidence to convict him; and that certain statements he made were erroneously admitted in evidence. He also argues that he was entrapped. Because we conclude that the statute, when correctly interpreted, is constitutional, and there is no merit to his other claims of error, we affirm the conviction.¹

Facts. We recite the essential facts from the defendant's trial, reserving certain details for our discussion of the issues. The defendant came to the attention of police when a woman from Haverhill reported that someone using an Internet "chat room" through America Online (AOL),² contacted her and told her, in essence, that he wanted to have sex with young children. He invited the woman to participate. He told the woman that he was forty-three years old and had had sexual contact with a number of children in the past.³ In May, 2003, the woman brought computerized printouts of the conversations she had had with the defendant to the police department in North Andover, where the defendant claimed to live. A North Andover detective contacted Detective John McLean of the Medford police department. McLean was a member of the computer crime unit of the North Eastern Massachusetts Law Enforcement Council⁴ and Medford police had an untraceable, "undercover computer" as well as a fully functional computer forensic laboratory.

McLean, pretending to be a fourteen year old named "Sara," went to the AOL chat room and initiated the first of eight Internet conversations with the defendant. In some of the conversations that followed, other officers posed as Sara.⁵ It was the fifth conversation, which occurred on June 3, 2003, for which the defendant was indicted. Some of the others were also introduced in evidence, however, to demonstrate the defendant's belief about Sara's age and his criminal intent.

In the four conversations leading up to the conversation of June 3, 2003, Sara repeatedly told the defendant that she was fourteen years old. In the course of the conversations, the defendant asked if she had pubic hair, mentioned her virginity, said that he liked girls her age, and discussed Sara's menstruation.⁶ In addition, in the June 3 conversation, the defendant described the specific sexual acts that he wished to perform on her once they met, including digital and oral penetration of her vagina which, he explained, would enable her to remain a virgin and not get pregnant.⁷

Sara told the defendant she lived in Medford. At trial, the defendant admitted that he "constantly" asked her to meet him in his automobile at the Wellington subway station. His invitations for Sara to meet him began in their first conversation. He told Sara where his vehicle would be parked and said he would be there in forty minutes. He described his vehicle as a black Lexus sports utility vehicle. He also revealed that he lived in North Andover, off Route 114, and gave her his telephone numbers at home and at work.⁸ In their second conversation, the defendant asked Sara to meet him at his car at 5:30 that evening, and the next day, in their third conversation, he stated that he was "mad" that she did not show up. In their fourth conversation, the defendant asked Sara to meet him at the station or a CVS store nearby, and said that he would drive her to his house and sneak her inside.

The fifth conversation, on June 3, began by Sara stating that she was worried that the defendant was "mad" because she did not meet him the day before. The defendant did not say that he had not waited for her. In that conversation, he asked Sara if she wanted "to come over" to his house because he was home from work, and said that he would drive her to his house like he had other girls. Later in the conversation, the defendant said that it would be "tough tonight" to meet, and he proposed that Sara come to his house "maybe next Monday or Tuesday." The defendant said they would have to do everything "secretly." Sara sent the defendant what she said was a picture of herself (with the face obscured) and reiterated that she was fourteen years old.

On June 5, the day after the eighth conversation between the defendant and Sara, police executed a search warrant at the defendant's home, seizing, among other things, a computer belonging to the defendant. They also arrested the defendant. Several statements the defendant made to police after his arrest were admitted against him at his trial.

The defendant did not deny that he had participated in these online conversations. He testified, however, that he never believed that Sara was in fact a child, that he was "playing along" and "role playing" in all of these conversations, including the conversations with the woman from Haverhill, and that he was just trying to find out who Sara was so that she would leave him alone. He testified that he had no intention of ever actually meeting Sara. He claimed that he included sexually explicit questions and references to explicit sexual acts in his messages to Sara in order to get her to leave him alone or tell him who she really was. On cross-examination, the defendant admitted that he never asked Sara who she really was and never "blocked" her ability to send him messages. The defendant also presented witnesses who testified to his reputation for honesty in the community. Further, the defendant and his father and brother testified regarding the execution of the search warrant at his home and his statements to police, discussed infra.

Discussion. General Laws c. 265, § 26C, provides:

"(a) As used in this section, the term `entice' shall mean to lure, induce, persuade, tempt, incite, solicit, coax or invite.

"(b) Any one who entices a child under the age of 16, or someone he believes to be a child under the age of 16, to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space with the intent that he or another person will violate section 13B, 13F, 13H, 22, 22A, 23, 24 or 24B of chapter 265, section 4A, 16, 28, 29, 29A, 29B, 29C, 35A, 53 or 53A of chapter 272, or any offense that has as an element the use or attempted use of force, shall be punished by imprisonment in the state prison for not more than 5 years, or in the house of correction for not more than 2½ years, or by both imprisonment and a fine of not more than $5,000."

a. Adequacy of "merely sending words." The defendant first argues that he could not have been convicted of child enticement because he "simply never engaged in conduct beyond merely sending words over the Internet." He contends that the statute requires something more, i.e., an overt act such as traveling to an agreed rendezvous location. We disagree.

"When the language of a statute is plain and unambiguous, it must be given its ordinary meaning." Commonwealth v. Brown, 431 Mass. 772, 775, 730 N.E.2d 297 (2000). The Legislature has provided that, when interpreting statutes, "[w]ords and phrases shall be construed according to the common and approved usage of the language...." G.L. c. 4, § 6, Third. Here, G.L. c. 265, § 26C (a), defines "entice" to mean lure, induce, persuade, tempt, incite, solicit, coax, or invite, each of which, according to the commonly accepted meaning of the term, can be accomplished by words (spoken or written) and nothing more. There is nothing in the language of either subsection (a) or subsection (b) that supports the defendant's contention that, in addition, there must be an overt act in order for the crime of child enticement to occur.⁹ However, while the statute does not require any further action by the person doing the enticing, or any type of agreement, reliance, or other action on the part of the person who receives the enticement, it does in fact require more than what the defendant characterizes as "merely sending words." What the statute does require in addition to enticing words or gestures, and indeed what we conclude is needed to ensure that constitutionally protected communications are not criminalized by the statute, is that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes; in other words, that the person who entices does so with a criminal mens rea. In sum, the crime of child enticement is complete when an individual, possessing the requisite criminal intent as set forth in subsection (b) and discussed in greater detail below, employs words, gestures, or other means to entice (or lure, induce, persuade) someone who is under the age of sixteen, or whom the actor believes is under the age of sixteen, to enter or remain in a vehicle, dwelling, building, or outdoor space.¹⁰ See Rambert v....