Appeals Court (September 1, 2011)

The crime of enticement of a child under 16, G.L. c. 265, § 26C, requires proof that the defendant intended to take the victim to a particular location.

During the summer of 2003, the defendant met and befriended an eleven year-old female. From the summer of 2003 through February 2004, they spent time together in his apartment and the defendant used gifts and other grooming tactics to persuade the child to show him her underwear and private parts. Immediately after supplying her with her third cell phone, he sent text messages asking her to send pictures of her buttocks and vagina to his phone. Between June 9 and July 6, 2004, the victim took twenty-eight photographs of herself and sent them to the defendant. The victim's foster mother became aware of the defendant's activities and contacted the police. The Boston Police Department took the victim's cell phone and seized a Nokia cell phone from the defendant's bed.

After trial in Superior Court, the jury convicted the defendant of enticement of a child, G.L. c. 265, § 26C; posing a child in a state of nudity, G.L. c. 272, § 29A; and possession of child pornography, G.L. c. 272, § 29C. The defendant appealed from these convictions alleging the judge erred when denying his motion for a required finding of not guilty on the enticement of a child, or alternatively that the charge was duplicative of the offense posing a child in the state of nudity. The defendant also contended that the child pornography statute, G.L. c. 272, § 29A does not prohibit images taken on a cell phone.[1]

Enticement of a Child Under 16
The crime of child enticement "has four elements: (1) 'Any one who entices,' (2) 'a child under the age of 16, or someone he believes to be a child under the age of 16,' (3) 'to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space,' (4) 'with the intent that he or another person will violate [one of the statutes enumerated above] ... or any offense that has as an element the use or attempted use of force.'" Commonwealth v. LaPlante, 73 Mass.App.Ct. 199, 202 (2008)(quoting G.L. c. 265, § 26C).

In this case, the defendant was charged with enticing a child with the intent to commit the crime of posing a child in a state of nudity. He argued there was insufficient evidence that he enticed the child "to enter, exit or remain within [a] vehicle, dwelling, building, or other outdoor space with the intent that he or another person will violate [certain enumerated statutes]." G.L. c. 265, § 26C, inserted by St.2002, c. 385, § 3. The Commonwealth contended that the third element of the offense can be proven by showing the defendant's intent to lure the victim to "virtually any place."

The statute does not require an overt act by the defendant or an actual meeting of the victim and defendant. However, the court denied extending the reach of the enticement statute to the facts of this case, which did not involve enticement to a particular location chosen by the defendant and where the victim was enticed to take nude photographs of herself at a place of her own choosing. The court found that accepting the Commonwealth's argument would render meaningless the element that the child must be enticed "to enter, exit, or remain within any vehicle, dwelling, building or other outdoor space." The crime of posing a child in the state of nudity protects children against the activity involved in this case, but the "purpose of the child enticement statute (G.L. c. 265, § 26C) is to provide further protection for children against the risks of danger or harm that lurk when a child is lured to a place chosen and potentially controlled by a predator." The court reasoned that if the enticement statute applied to the facts of this case then there would be no distinction between enticement of a child, G.L. c. 265, § 26C and posing a child in a state of nudity, G.L. c. 272, § 29A.

The court set aside the verdict as to this indictment, and entered a judgment for the defendant.

Child Pornography
The court quickly considered the defendant's argument that the child pornography statute does not prohibit images on a cell phone and found that "there is little, if any, practical difference between the images produced by a dedicated digital camera and a camera that is part of a cell phone; such a camera produces a 'photograph or other similar visual reproduction, or depiction by computer.' G.L. c. 272, § 29C."

[1] The defendant had additional unmeritorious arguments that can be found in the decision but are not included in this case summary.