Commonwealth v. Wassilie

• Decision Date: 02 July 2019
• Docket Number: SJC-12672
• Citation: 482 Mass. 562,125 N.E.3d 682
• Parties: COMMONWEALTH v. Sam C. WASSILIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

482 Mass. 562

125 N.E.3d 682

COMMONWEALTH

v.Sam C. WASSILIE.

SJC-12672

Supreme Judicial Court of Massachusetts, Berkshire..

Argued April 2, 2019

Decided July 2, 2019

Jeanne M. Kempthorne, Assistant District Attorney, for the Commonwealth.

Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

The defendant, Sam C. Wassilie, was convicted on ten indictments charging him with secretly videotaping, with his cellular telephone (cell phone), unsuspecting individual adults who were nude or partially nude, in violation of G. L. c. 272, § 105(b ), first par. (paragraph one).¹ He also was convicted on five indictments charging violation of G. L. c. 272, § 105(b ), third par. (paragraph three), for secretly videotaping children during the same incident.

The parties cross-appealed. The defendant argues that the judge erred when he upheld the defendant's convictions under paragraph one of the statute, ruling that the proper unit of prosecution was the individual victim rather than the episodes of videotaping. The Commonwealth challenges the judge's posttrial decision declaring that paragraph three of the statute was unconstitutionally vague and vacating the defendant's convictions of videotaping the children.

We conclude that the proper unit of prosecution under § 105(b ), first par., is based on the individual victims. We also conclude that § 105(b ), third par., is not unconstitutionally vague. However, because the judge did not include certain language from paragraph three in the instruction to the jury on the charges of videotaping the children, we remand three of the five indictments for a new trial.

1. Background. We briefly recite the facts that the jury could have found at trial. The defendant was arrested in New York for using his cell phone to record people secretly in a public bathroom in New York. New York authorities secured a search warrant and discovered two recordings on the defendant's laptop, each approximately twenty minutes long that showed individuals using a different bathroom. After some investigation, police deduced that the bathroom was located in Massachusetts at a recreational complex in Dalton.²

At trial, the evidence showed that the bathroom was a unisex, one room bathroom, without any stalls. A Dalton police officer testified that the bathroom was "just a toilet, a sink, paper towels ... [it was] an open bathroom." At the beginning of each of the recordings, the defendant is shown starting the recording, concealing the cell phone by wrapping it in paper towels, and then placing it across from the toilet on the floor. According to the officer, the defendant "set up [the cell phone] directly across from the toilet so you would have a clear view of the toilet." In the first video, the defendant reentered the bathroom after approximately twenty minutes, adjusted the angle of the cell phone to a lower view, and restarted the recording. The police officer agreed that the angle of the recording device was positioned to capture images of "the parts of the body under [a person's] clothing." Both videos depict genitalia of children and adults, male and female. One segment of the recording captures an image under the skirt of a female child in a cheerleading outfit. The recordings showed seventeen adults and five juveniles, not all identifiable, nude or partially nude, using the bathroom.

2. Procedural history. The defendant was indicted on twenty-two counts of violating § 105(b ).³ The jury convicted the defendant on a total of fifteen indictments charging a violation of § 105(b ) : ten charging a violation of paragraph one, and five charging a violation of paragraph three. After trial, the defendant filed a motion to vacate the judgments on all indictments but one under paragraph one and to sentence him only on that one indictment. He argued that the correct unit of prosecution was the episode of videotaping, not each individual victim who appeared in the recordings. In denying that motion, the judge concluded that the proper unit of prosecution under paragraph one was based on the individual victims. The defendant also filed a motion for a required finding of not guilty on the five indictments charging a violation of paragraph three. In that motion, he argued that the "upskirting language" in paragraph three, forbidding surveillance "under or around" a "child's clothing," was unconstitutionally vague and ambiguous. After a hearing, the judge allowed that motion, concluding that the upskirting language in paragraph three made the statute unconstitutionally vague. He dismissed the five indictments with prejudice.

3. Standard of review. We review the judge's decisions on the defendant's postconviction motions for an abuse of discretion. See Commonwealth v. Grassie, 476 Mass. 202, 214-215, 65 N.E.3d 1199 (2017), S.C., 482 Mass. 1017, 121 N.E.3d 1290 (2019). We review any question of statutory interpretation de novo. Commonwealth v. Wade, 475 Mass. 54, 60, 55 N.E.3d 409 (2016).

4. Discussion. a. Statutory history. For context, we discuss the history of § 105(b ). In its original version, § 105(b ) consisted of a sole paragraph that punished general "Peeping Tom" voyeurism. See Commonwealth v. Robertson, 467 Mass. 371, 380, 5 N.E.3d 522 (2014) ; St. 2008, c. 451, § 149. At the time, § 105(b) stated:

"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 ½ years or by a fine of not more than $5,000, or by both such fine and imprisonment."

In Robertson, 467 Mass. at 372-373, 5 N.E.3d 522, the defendant was charged under § 105(b ) for videotaping surreptitiously the clothed crotch areas of women seated across from him on the Massachusetts Bay Transportation Authority (MBTA) trolley. We reversed the denial of the defendant's motion to dismiss and concluded that § 105(b ) did not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, did not reach the type of upskirting that the defendant was charged with attempting to accomplish on the MBTA. Id. at 380, 5 N.E.3d 522.

In response to our decision in Robertson, the Legislature immediately amended § 105(b ) to insert two additional paragraphs to address the type of conduct that occurred in Robertson -- "namely, the surreptitious photographing or videotaping of a person's clothed private anatomy even when in public." Commonwealth v. Nascimento, 91 Mass. App. Ct. 665, 666, 79 N.E.3d 1075 (2017). See St. 2014, c. 43, § 2. Paragraph three, which is the paragraph at issue in this case, states:

"Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of [eighteen] under or around the child's clothing to view or attempt to view the child's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public shall be punished ...." G. L. c. 272, § 105(b ), third par.

At the same time, the Legislature also inserted a definition of "sexual or other intimate parts" as "human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments" (emphasis added). G. L. c. 272, § 105(a ), as amended by St. 2014, c. 43, § 1.

After § 105(b ) had been amended, the Appeals Court considered whether the amended version of § 105(b ) protected individuals in public places.

Nascimento, 91 Mass. App. Ct. at 665, 79 N.E.3d 1075. The defendant in that case was convicted under paragraph three of secretly videotaping two teenage girls under their dresses while they were traveling on a public ferry. Id. The Appeals Court reasoned that an individual does not lose all reasonable expectations of privacy in their covered sexual or intimate parts simply by being in public, and thus held that the amended statute applies "when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public." Id. at 667, 79 N.E.3d 1075.

b. Unit of prosecution under G. L. c. 272, § 105( b ).⁴ "[A] unit of prosecution is a criminal act or course of conduct punishable at law." Commonwealth v. Dykens, 473 Mass. 635, 640 n.4, 45 N.E.3d 580 (2016). In his decision on the defendant's motion, the judge concluded that the proper unit of prosecution in paragraph one was based on the number of victims. In doing so, the judge distinguished this case from Commonwealth v. Rollins, 470 Mass. 66, 67, 18 N.E.3d 670 (2014), where we concluded that under the structure of the statute, G. L. c. 272, § 29C, the appropriate unit of prosecution for possession of child pornography was not each photograph in a large, "single cache" of photographs, but the collection as a whole.

The defendant contends that the judge erred and that the correct unit of prosecution is the episode of recording, rather than the number of victims whose privacy was violated by the recording. He argues that if each victim was a unit of prosecution it would lead to an unreasonable result and violate the double jeopardy clause of the Fifth Amendment to the United States Constitution as well as Massachusetts common law.

The double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law preclude the imposition of multiple punishments for the commission of a single crime. Rollins, 470 Mass. at 70, 18...