COMMONWEALTH v. LEWIS (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

As the Commonwealth concedes, the amendment to the complaint, changing the charged offense from the misdemeanor of photographing an unsuspecting nude person, in violation of G. L. c. 272, § 105 (b), second par., to the felony of photographing an unsuspecting nude child under the age of eighteen, in violation of the third paragraph of the same section, was one of substance rather than one of form. The amendment added an element to the charged offense, see Commonwealth v. Ruidiaz, 65 Mass. App. Ct. 462, 464 (2006), and imposed a different penalty based on the additional element, see Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 511 (2009).

The judgment is vacated. So much of the verdict as finds the defendant guilty of photographing an unsuspecting nude child under the age of eighteen, in violation of G. L. c. 272, § 105 (b), third par., is set aside; the remaining portion of the verdict (photographing an unsuspecting nude person, in violation of G. L. c. 272, § 105 [b], second par.), is to stand, and the case is remanded to the District Court for resentencing on that offense.

So ordered.

Vacated and remanded