Commonwealth v. Dodgson

• Citation: 80 Mass.App.Ct. 307,952 N.E.2d 961
• Decision Date: 01 September 2011
• Docket Number: No. 09–P–1972.,09–P–1972.
• Parties: COMMONWEALTHv.Sean K. DODGSON.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 307

952 N.E.2d 961

COMMONWEALTH

v.Sean K. DODGSON.

No. 09–P–1972.

Appeals Court of Massachusetts, Plymouth.

Argued Nov. 12, 2010.Decided Sept. 1, 2011.

Edward J. O'Brien, Quincy, for the defendant.Mary E. Lee, Assistant District Attorney, for the Commonwealth.Present: McHUGH, SIKORA, & FECTEAU, JJ.

SIKORA, J.

At the conclusion of a three-day trial, a Superior Court jury convicted the defendant, Sean K. Dodgson, of three counts of attempted dissemination of matter harmful to a minor within the meaning of G.L. c. 272, §§ 28 and 31; one count of dissemination of obscene matter within the meaning of G.L. c. 272, §§ 29 and 31; and two counts of enticement of a child under the age of sixteen within the meaning of G.L. c. 265, § 26C.

The defendant now appeals from these convictions upon grounds that (1) online instant messages are not “matter” as defined by G.L. c. 272, §§ 28 and 31; (2) the private transmission of a picture is not “dissemination” of obscene material under G.L. c. 272, §§ 29 and 31; (3) the admission of his subscription to an online adult dating service was improper; (4) the prosecutor's closing argument was improper; and (5) he suffered ineffective assistance of counsel. For the following reasons, we affirm the judgments for dissemination of obscene matter and enticement of a child. We reverse the judgments for attempted dissemination of matter harmful to a minor, set aside those verdicts, and enter judgments for the defendant on those counts.

Background. The evidence permitted the jury to find as follows. In June, 2006, Deputy Sheriff Melissa Marino and State police Trooper Peter Cooke were conducting an undercover online investigation in which each posed as a minor. On June 14, 2006, Marino entered a Yahoo ¹ Massachusetts-based adult romance “chat room” using the undercover screen name “melissaqt1995.” Her profile indicated that she was an eighth-grader named “Melissa.”

The defendant, also in the chat room, sent a private instant message to “Melissa” under the screen name “alaughahugandasmile,” and they began to converse.² “Melissa” said that she was a thirteen year old girl living in a hotel in the town of Kingston with her mother. The defendant claimed to be a twenty-four year old male.³ The discussion quickly turned sexual, and the defendant continuously made graphic sexual remarks and proposals. He eventually sent “Melissa” a picture of a naked erect penis, which he claimed to be his own, and made sexually explicit comments about it. “Melissa” and the defendant discussed the possibility of a meeting, but made no specific plans.

On June 15, 2006, the defendant began a private instant message conversation with “Melissa.” Almost immediately, the conversation turned sexual. During the conversation, “Melissa” said that she was talking to her friend “Krissy,” who was also thirteen. “Krissy” was Cooke's undercover identity. The defendant suggested that the three of them should meet and engage in sexual intercourse and related activity. “Melissa” eventually gave the defendant “Krissy's” screen name, “krissy01_10_1993,” and the defendant sent an instant message to her. Their conversation was also immediately and continuously sexually graphic. The defendant mentioned to “Krissy” the possibility of meeting both girls that night. He later made specific plans with “Melissa” by both instant message and a brief telephone conversation.

The defendant agreed to meet “Melissa” and “Krissy” at a Burger King located in Kingston. At the agreed meeting time, Marino, Cooke, and two other law enforcement officers, all undercover, parked at a Dunkin' Donuts shop across the street from the Burger King. Marino received a telephone call from the defendant and saw him on a cellular telephone in a green van. After the telephone call, Marino watched the defendant walk up and down the road in front of the Burger King. He then drove to the Dunkin' Donuts lot, parked directly across from Marino and Cooke's vehicle, stared at Marino and Cooke as he exited his van, entered the Dunkin' Donuts, looked at them again as he returned to his vehicle, and left.

On June 16, 2006, the defendant sent an instant message to “melissaqt1995” stating, “I am glad to see the young girls of Kingston are being protected [from] potential harm.” He claimed that he knew that he was communicating with a police operation and that he was testing the effectiveness of the law enforcement system. For part of this conversation, Cooke pretended to be “Melissa,” but eventually revealed himself as a State trooper and proposed that the defendant contact him to arrange an interview.

On June 19, 2006, the defendant, using a computer at the office of his employer, deleted all his Yahoo contacts and edited his profile on Yahoo. He also reinstalled the Windows operating system on that computer. On June 20, 2006, the defendant created a two-page document describing the events of June 14 and 15, 2006, his motives, and the perceived flaws in the police operation.

On July 15, 2006, Cooke and State police Trooper Richard Long arrested the defendant. The defendant waived his Miranda rights and Cooke and Long interviewed him. During the interview, the defendant continued to assert that he knew that he was talking to the police and was testing their performance because he was concerned about his daughters' online safety. Throughout the interview Cooke challenged the defendant's claims and stated his opinion that the defendant was guilty.

At trial, the transcript and audiotapes of Cooke's interview came into evidence without objection. Also without objection, Marino and Cooke read the instant message dialogues to the jury; the jurors then received copies of the transcript of them. Over objection, the judge allowed evidence of an adult dating site subscription found on the defendant's computer and paid for by the defendant's credit card. In his closing argument, the prosecutor referred to the defendant's guilt, his ability to “rehearse” his story, and his lack of communication with his wife about his testing of Internet law enforcement. Defense counsel objected unsuccessfully to the prosecutor's reference to guilt.

Discussion. 1. Online messages as “matter harmful to a child.” General Laws c. 272, § 28, as amended by St.1982, c. 603, § 2, provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished....” At the time of the defendant's conduct in June, 2006, G.L. c. 272, § 31, as amended by St.2002, c. 161, § 1, defined “matter” as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” Here, the “matter” found to have been disseminated was instant message communications over the Internet. In Commonwealth v. Zubiel, 456 Mass. 27, 30–33, 921 N.E.2d 78 (2010), the court held that online electronically transmitted messages are not “matter” as defined by § 31. Therefore, we must reverse the defendant's convictions for attempted dissemination of matter harmful to a minor.

After Zubiel, the Legislature amended G.L. c. 272, § 31, to include within the definition of matter any electronic communication, including online messages. St.2010, c. 74, § 2 (approved April 12, 2010). The 2010 amendment, however, cannot apply retroactively to the defendant's 2006 conduct. Art. I, § 10, cl. 1, of the United States Constitution (“No State shall ... pass any ... ex post facto Law”).

2. Dissemination of the picture. The defendant argues that the transmission of the picture of the naked erect penis in a private online conversation does not constitute “dissemination” of obscene matter under G.L. c. 272, §§ 29 and 31. We disagree.

General Laws c. 272, § 31, inserted by St.1974, c. 430, § 12, defines the term “disseminate,” for purposes of § 29, as “to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display.” The defendant argues that the common thread of these words is public or commercial character. In Commonwealth v. Rollins, 60 Mass.App.Ct. 153, 154–156, 799 N.E.2d 1287 (2003), the defendant dropped in a residential area obscene materials from a car on three different occasions. This court held that the evidence was sufficient for a finding that the defendant had dropped the material “intending and expecting that the material would be seen by individuals whom he knew were in the area.” Id. at 157, 799 N.E.2d 1287. Thus, the defendant in Rollins “disseminated” the material within the meaning of G.L. c. 272, § 31, despite the absence of commercial activity. Id. at 157–158, 799 N.E.2d 1287. Additionally, we have noted that additions to the obscenity statutes by the Legislature have “criminalized behavior that is not necessarily commercial in nature.” Commonwealth v. O'Keefe, 48 Mass.App.Ct. 566, 571, 723 N.E.2d 1000 (2000).

Nor does dissemination require proof of multiple recipients. The opening words of G.L. c. 272, § 28, as example, recite, “Whoever disseminates to a minor any matter harmful to minors ...” ⁴ (emphasis supplied). As one synonym of the verb “disseminate,” § 31 uses the word “distribute.” One can “distribute” material to singular or multiple individuals. As a practical matter, distribution of obscene matter to a single individual, especially a minor, releases it for redistribution to others in either original composition or copied form. Requirement of proof of multiple original recipients would contradict the letter and impair the purpose of § 31.

3. Admission of the online adult dating service subscription. The defendant argues that the admission of his online adult dating service subscription created improper propensity...