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Appeals Court of Massachusetts.



Decided: October 01, 2021

By the Court (Massing, Kinder & Neyman, JJ.1)


A District Court jury convicted the defendant of possession of child pornography in violation of G. L. c. 272, § 29C (vii). The conviction was based on evidence that a police officer discovered twenty-eight photographs of children on the defendant's cell phone while investigating other criminal activity.2 On appeal, the defendant argues that (1) the evidence was insufficient to sustain his conviction because none of the photographs constituted child pornography within the meaning of § 29C (vii), and (2) even if one or more of the photographs constituted child pornography, the verdict should be set aside because it is not possible to discern upon which photographs the jury based its verdict.

The Commonwealth agrees that twenty-seven of the photographs do not constitute child pornography and concedes that the verdict must be set aside because it cannot be discerned from the record which photograph formed the basis of the jury's guilty verdict. The Commonwealth argues, however, that the evidence was sufficient to prove beyond a reasonable doubt that one of the photographs, exhibit 1, constituted child pornography, and that the case should be remanded for a new trial. We therefore limit our sufficiency review to whether exhibit 1 constituted child pornography as defined by § 29C (vii).3

To obtain a conviction for possession of child pornography as charged in this case, the Commonwealth was required to prove beyond a reasonable doubt that (1) the defendant knowingly possessed a photograph of a child whom the defendant knew or should have known was under the age of eighteen, and (2) the female child was portrayed in a pose involving a lewd exhibition of the child's fully or partially developed breast. See G. L. c. 272, § 29C (vii). Because the trial judge was in no better position to evaluate the content of exhibit 1, our review of the photograph is de novo and independent, without the deference we typically give to the findings of the trial court judge. Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002). See also Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 304 (2012) (independent review required because photographs depicting minor's breasts protected by First Amendment to the United States Constitution if not lewd).

Exhibit 1 depicts a prepubescent female unclothed from the chest up. The female's left hand is raised to her open mouth and her eyes are open wide with a look of surprise. The defendant does not dispute that the photograph depicts a child whom he knew or should have known was under eighteen. The defendant contends, however, that the photograph does not depict “the lewd exhibition of the unclothed ․ fully or partially developed breast of the child” as required by the statute. G. L. c. 272, § 29C (vii). The Commonwealth concedes that the image does not contain a fully or partially developed breast, but argues that we should construe § 29C (vii) to include a female child's undeveloped chest. We are not persuaded. “Courts may not read into a statute a provision that the Legislature did not enact, nor add words that the Legislature had an option to, but chose not to include” (quotation and citation omitted). Commonwealth v. Newberry, 483 Mass. 186, 195 (2019).

Further, we do not consider the image depicted in exhibit 1 to be a “lewd exhibition” when measured against the relevant legal standards. Nudity, without more, does not establish lewdness. Bean, 435 Mass. at 715 n.17. In deciding whether a particular depiction of a nude body is lewd, we utilize the factors set out in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987), as a starting point.4 Sullivan, 82 Mass. App. Ct. at 302. Here, the focus of the image is the girl's face, not her genitalia or pubic area. The photograph does not appear to have been taken in a place generally associated with sexual activity. While the child's torso appears to be nude and the child exhibits a look of surprise, there is nothing unnatural in her pose. We do not interpret the image as one that would elicit a sexual response.

Simply put, exhibit 1 does not constitute child pornography because it does not meet the criteria set forth in the plain language of the statute. The photograph is not a lewd exhibition of the fully or partially developed breast of a female child.

The judgment is reversed, the verdict is set aside, and the case is remanded to the District Court for entry of a judgment of not guilty.

So ordered.

Judgment reversed.

Verdict set aside.



2.   Based on evidence gathered in the other investigation, the defendant was separately tried and convicted of photographing an unsuspecting nude child in violation of G. L. c. 272, § 105 (b). See Commonwealth vs. Lewis, Springfield Dist. Ct., No. 1723CR006922 (Feb. 8, 2019). That conviction is not before us on appeal.

3.   As the Commonwealth bears the burden of proof, we exercise our discretion to accept its concession and do not review the other photographs to determine if they constitute child pornography under the statute. See Commonwealth v. Pinney, 97 Mass. App. Ct. 392, 399 n.5 (2020).

4.   The Dost factors are “(1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Sullivan, 82 Mass. App. Ct. at 302-303, quoting Dost, 636 F. Supp. at 832.

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