COMMONWEALTH v. FAMOSI (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from his conviction of photographing, videotaping, or electronically surveilling the sexual or intimate parts of a child in violation of G. L. c. 272, § 105 (b), the defendant argues that it was error to deny his motion for required finding since the evidence was insufficient to support the offense as charged under the third paragraph of § 105 (b). We agree.

We review the denial of a defendant's motion for a required finding of not guilty to determine “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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The defendant claims that there was no evidence that any photographing, videotaping, or electronic surveilling was accomplished under or around the victim's clothing. Although the complaint here did not identify under which paragraph of § 105 (b) the defendant was charged, the parties agree that the complaint tracks the language of the third paragraph of § 105 (b). Under the third paragraph “[t]he elements of the offense are that (1) the defendant willfully photographed, videotaped, or electronically surveilled, (2) with the intent to secretly conduct or hide his photographing activity, (3) the intimate parts of a child, (4) under or around the child's clothing to view or attempt to view the child's intimate parts, (5) when a reasonable person would believe that child's intimate parts would not be visible to the public.” Commonwealth v. Wassilie, 482 Mass. 562, 577 n.7 (2019). The defendant argues, and the Commonwealth concedes, that the evidence here did not support a conviction under the third paragraph of § 105 (b) since there was no evidence that the alleged photographing, videotaping or surveilling was accomplished under or around the child's clothing.

Having independently reviewed the record, we agree. See Commonwealth v. Poirer, 458 Mass. 1014, 1015 (2010) (confession of error does not relieve appellate court of performance of its appellate function). During the District Court jury-waived trial the judge heard evidence that an electronic device owned by the defendant, capable of recording or streaming a live video, was found in a bathroom he shared with his girlfriend and her seventeen year old daughter. The electronic device was discovered by the seventeen year old daughter while she was naked and in the shower. There was no evidence of her wearing any clothes while in the bathroom in a place where the device would have been able to record her intimate parts under or around the clothing. See Wassilie, 482 Mass. at 575 (“in cases where a child is recorded nude or partially nude with their sexual or intimate parts readily exposed it cannot be said that recording was taken under or around a layer of clothing” as required by the third paragraph of § 105 [b]).

“It is elementary in the criminal law of this Commonwealth that ‘[t]he offence must not only be proved as charged, but it must be charged as proved.’ ” Commonwealth v. Collardo, 13 Mass. App. Ct. 1013, 1014, (1982), quoting Commonwealth v. Ancillo, 350 Mass. 427, 430 (1966). Because the evidence offered by the Commonwealth did not include an essential element of the crime as charged, namely that the photographing, videotaping, or electronic surveilling occurred under or around the child's clothing, the defendant was entitled to a required finding of not guilty. The defendant also argues on appeal that the Commonwealth's proof was insufficient in so far as no photograph or video recording was introduced at trial. We disagree.

“For most crimes, indirect or circumstantial evidence is generally sufficient to prove any or all of the elements of an offense. See Commonwealth v. Grandison, 433 Mass. 135, 140-141 (2001). Stated differently, provided a jury's verdict does not rest upon speculation or conjecture, the mere absence of direct evidence with respect to one or more elements of a crime by no means mandates a finding of legal insufficiency.” Commonwealth v. Manzelli, 68 Mass. App. Ct. 691, 694 (2007). We conclude that even without a photograph or video recording, the evidence presented here would have allowed a reasonable fact finder to infer that the defendant used the electronic device to secretly surveil the seventeen year old daughter of his girlfriend while she was nude.

As we are constrained by the circumstances in this case, the judgment is reversed, the finding is set aside, and judgment shall enter for the defendant.

So ordered.

Reversed.