Commonwealth v. Halstrom

84 Mass.App.Ct. 372

996 N.E.2d 892

COMMONWEALTH

v.Melissa HALSTROM (and seven companion cases ¹).

No. 11–P–1276.

Appeals Court of Massachusetts, Essex.

Argued May 2, 2013.

Decided Oct. 11, 2013.

Nicole M. Procida, Salem, for Melissa Halstrom.

Jennifer Marie Petersen for Anthony Gorgoglione.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Present: MILKEY, CARHART, & SULLIVAN, JJ.

SULLIVAN, J.

The defendants appeal from multiple convictions of inducing a minor to become a prostitute, G.L. c. 272, § 4A, and deriving support from a minor prostitute, G.L. c. 272, § 4B.² Both defendants argue that the jury instructions were erroneous with regard to the definition of “inducement,” that there was insufficient evidence as to inducement, and that the prosecutor's closing argument was improper. The defendant Melissa Halstrom contends that the instruction regarding deriving support from prostitution was erroneous. The defendant Anthony Gorgoglione argues that his motion to sever should have been granted and that the prosecutor's opening statement impermissibly referenced excluded evidence. We affirm.

Background. We summarize the facts of the case, leaving additional facts for later discussion as needed. The case involved three minors, Gail, Beth, and Maureen (collectively, girls), ages sixteento seventeen, who the Commonwealth maintained were persuaded to participate in a prostitution business operated by Halstrom with the assistance of Gorgoglione. Gail had known Halstrom since 2005, when Halstrom dated her father. When Gail was “kicked out” of her house during her freshman year of high school in 2005, she stayed with Halstrom for about a month. She remained close to Halstrom and visited her frequently. In the summer of 2007, Gail again lived with her father. Gail also socialized with Halstrom. During this period, Gail lost her job at a coffee shop and was unable to find another position. After her father received an eviction notice, Gail told Halstrom that she was worried about her family's ability to pay the rent.

Upon learning of the eviction notice, Halstrom told Gail about her work as an escort, which she described as accompanying men to events. She said that the work was “fun” and “easy money.” Halstrom said she was looking for girls, and “it didn't matter” if they were not eighteen. Halstrom said she would take pictures for a Web site and “go from there.”

Gail, who, in her own words, was “17 and a little desperate,” agreed to have the pictures taken. She also introduced her friends Beth (a runaway) and Maureen (who stayed with Gail several nights a week) to Halstrom. After meeting Halstrom, Beth and Maureen expressed an interest in the escort business. Gail and Beth participated in a photography session in which Gorgoglione posed the girls and took photographs of them in lingerie. Gail and Maureen later participated in a similar photography session. Both sets of photographs appeared on the Web site set up by the defendants.

Halstrom then organized “dates” for the girls during which they had sex with men. Gail and Maureen maintained that they were first told that they would have to have sex with the men in a hotel room shortly before the first date. It was undisputed that Beth understood this fact from the outset. The defense suggested that the proposition that the girls misunderstood their roles was disingenuous at best, particularly in light of the nature of the photographs taken and displayed on the Internet.

Halstrom provided the girls with hotel names and keys, gave them drugs, took them to the hotels, paid for the rooms, and took $100 of the $300 charged per hour by each girl. In additionto taking the photographs, Gorgoglione also transported the girls to the hotels, and discussed their dates with them.

After a period of time, Maureen stopped participating. Beth, who had run away from her home in another State, turned herself in to the police in the beginning of September, 2007, prompting the investigation that resulted in the indictment and trial of the defendants in 2009.

Discussion. 1. Inducement. Both defendants challenge the judge's instructions concerning inducement of a minor to become a prostitute. The defendants also challenge the sufficiency of the evidence as to inducement.

a. Instruction—the meaning of “induce.” The judge instructed the jury that “[i]nduce means to lead or move another to do something by influence or persuasion.” Halstrom argues that the judge's instruction was deficient because it lowered the Commonwealth's burden of proof by conflating inducement with mere influence or contribution. Halstrom did not object or request other instructions. Our review is therefore for error creating a substantial risk of a miscarriage of justice. Commonwealth v. Marinho, 464 Mass. 115, 122, 981 N.E.2d 648 (2013).

In the absence of a statutory definition, “we give [the words] their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions.” Commonwealth v. Zubiel, 456 Mass. 27, 32, 921 N.E.2d 78 (2010), quoting from Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977). See Singer & Singer, Statutes and Statutory Construction § 46.4 (7th ed. 2007); Commonwealth v. O'Keefe, 48 Mass.App.Ct. 566, 567, 723 N.E.2d 1000 (2000).

Webster's Third New International Dictionary 1154 (2002) defines the word “induce” to mean, in pertinent part, “to move and lead (as by persuasion or influence) ... to inspire, call forth, or bring about by influence or stimulation.” This construction, which the judge adopted in the jury instruction, also “gains support from the language and construction of related statutes.” Commonwealth v. Welch, 444 Mass. 80, 87, 825 N.E.2d 1005 (2005). In G.L. c. 272, § 4, as amended by St. 1998, c. 232, § 3, which punishes “[w]hoever induces any person under 18 years of age of chaste life to have unlawful sexual intercourse,” the word “induce” has been construed to mean “to move and lead (as by persuasion or influence); prevail upon; influence, persuade.” Commonwealth v. Foley, 24 Mass.App.Ct. 114, 115 n. 1, 506 N.E.2d 1160 (1987) (quotation omitted). More recently, in Commonwealth v. Matos, 78 Mass.App.Ct. 578, 588 n. 14, 941 N.E.2d 645 (2011), we noted with respect to the child enticement statute, G.L. c. 265, § 26C, that the word “induce” “appears to be used interchangeably with ‘entice,’ ‘lure,’ ‘persuade,’ ‘tempt,’ ‘incite,’ ‘solicit,’ ‘coax,’ or ‘invite.’ ” The word “induce” also forms one of the statutory bases for a conviction of contributing to the delinquency of a minor under G.L. c. 119, § 63, as amended by St. 1996, c. 450, § 162, by “tending to cause or induce such delinquency” of a child. See Matos, supra. The usual and accepted meaning of the word “induce,” as judged by common parlance and legislative usage, thus encompasses either influence or persuasion. With respect to G.L. c. 272, § 4A, the salient inquiry is whether by word or deed the defendant has influenced or persuaded “a minor to become a prostitute.” ³ There was no error in the instruction on this ground.⁴ b. Sufficiency—Halstrom. Halstrom contends that there was insufficient evidence of inducement because the girls chose to be prostitutes, saw her lifestyle as desirable, and thus willingly and voluntarily engaged in prostitution for this reason. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), the evidence presented was more than sufficient to permit the jury to find beyond a reasonable doubt that Halstrom intentionally cultivated an image intended to persuade the girls that being an escort was desirable, and that she facilitated their entry into the trade in myriad ways.

Halstrom befriended the girls at a particularly vulnerable time in each of their lives. She socialized with the girls at her apartment, served them champagne, and gave them drugs. She told the girls the work was “fun” and “easy money.” Gail and Beth saw that Halstrom had a nice car, nice furniture, and a well-kept apartment, which Halstrom said was paid for by her clients. Halstrom told Gail that she was “looking for girls” to join the escort service and that it “didn't matter” if they were not eighteen.

Moreover, there was evidence that Halstrom did much more than passively market her lifestyle. Viewed in the light most favorable to the Commonwealth, the jury could have found beyond a reasonable doubt that she methodically led the girls into prostitution. At the outset, she gave a partial description of the services provided to two of the girls, withholding information as to the actual nature of the escort service. She then arranged for highly suggestive photographs to be taken of the girls, bought lingerie for them for two photography sessions, assisted in the girls' poses,⁵ and said that she would be using the photographs “for her business.” Whether the girls were misled by Halstrom's characterization of her business, or remained uninformed even after the photographs were taken, was for the jury. Even if the jury found, as Halstrom urged, that the girls were not misled, the jury were also permitted to find that the incremental exposure to all of the particulars of the business was part of a successful plan of gradual acclimatization.

Once the girls cooperated in the initial photography sessions, Halstrom then moved forward to set them up with dates. She gave the girls pseudonyms for the Web site, told the girls when their dates would be, recruited the dates, gave the girls the hotel number and room key, drove the girls to the hotel, provided condoms,and paid for the hotel room. She gave one or more of the girls Klonopin in advance of the first date and supplied them with the...