Commonwealth v. King

96 Mass.App.Ct. 703

138 N.E.3d 432

COMMONWEALTH

v.Jamie V. KING.

No. 19-P-252

Appeals Court of Massachusetts, Essex.

Argued September 10, 2019

Decided December 12, 2019

Matthew Malm, Boston, for the defendant.

Kristen W. Jiang, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Hanlon, & Agnes, JJ.

WOLOHOJIAN, J.

The defendant's probation was revoked by a Superior Court judge who found that the defendant had violated two conditions of his probation. On appeal, the Commonwealth acknowledges that the defendant's conduct did not violate the terms of one of those two conditions, while the defendant acknowledges that the evidence was sufficient to find that he violated the other one. The issue before us is whether, in the circumstances presented, the matter must be remanded for resentencing. For the reasons set out below, we conclude that it must.

Background. The defendant pleaded guilty on June 2, 2015, to possession of child pornography. During the plea colloquy, the defendant admitted that he had downloaded many images and video recordings of child pornography, and that he had possessed a number of Polaroid photographs of his young relative in various stages of nudity, focusing on her genitalia and in some cases depicting her masturbating. The defendant was sentenced to five years of probation.¹ His probationary terms included special conditions proposed by the district attorney's office and adopted verbatim by the judge. They included the following four provisions:

"(2) The probationer shall refrain from deliberately engaging in unsupervised direct or indirect contact with any child under the age of eighteen (18), in any way, including but not limited to physical contact, auditory contact, and electronic contact (e.g., chat rooms, bulletin boards, electronic mail, etc.).

"(3) The probationer shall not access any internet services from any handheld device (e.g., Palm Pilots, Blackberries, and mobile telephones) and he shall disclose to Probation whether he presently possesses any of these devices or acquires any one or more of them in the future.

"(4) The probationer shall not use, enter, visit, participate in, or remain in any online chat room, bulletin board service, message board service, social networking site or service (for example, Facebook.com, Twitter.com, Instagram.com), or any other online communication service, with the sole exception of electronic mail. The probationer shall not disguise or attempt to disguise his identity or his address while accessing any online service.

"....

"(6) The probationer immediately shall disclose the names of all online services (e.g., an Internet service, an Internet Service Provider, an electronic bulletin board, an electronic news group, etc.), electronic mail providers, screen names, and passwords that he currently uses, and shall constantly continue to disclose these names and any new such information to Probation."

There was a discussion during the plea colloquy about the difference in scope between special conditions three and four. Defense counsel urged that special condition three, which restricted all access to the Internet from handheld devices, be limited to the scope of special condition four, which only restricted use of social media. The prosecutor disagreed, noting the difficulty of effectively monitoring a lesser restriction on portable handheld devices. The judge then inquired of the prosecutor whether, in contrast to special condition three (which prohibited all use of the Internet), special condition four would prohibit only access to social media. The prosecutor confirmed this intended distinction between the two conditions. The discussion concluded with the judge stating, "I just want to make sure that Mr. King understands ... that it's only the handheld device that would be subject to this bigger prohibition."

On May 11, 2017, the probation department alleged that the defendant had (1) violated special condition two by failing "to refrain from deliberately engaging in unsupervised direct/indirect contact with minor children," (2) violated special condition four by failing "to refrain from use of [the] internet for purposes other than that of business or personal email," and (3) violated special condition six by failing "to disclose [the] names of all online services/email providers and email accounts to probation."² It should be noted at this juncture that the defendant's alleged violation of special condition four (i.e., failing "to refrain from use of [the] internet for purposes other than that of business or personal email") does not track the language of special condition four.

The following information emerged at the probation surrender hearing. On May 10, 2017, the defendant's probation officer was notified by staff at the shelter in Salem where the defendant lived that he possessed materials printed from the Internet, including pictures of young girls. The defendant had downloaded the materials from the Internet using a computer at a career center in Salem. Once downloaded, the defendant had e-mailed some of the materials to himself using an e-mail address made up of his name and birthdate, jamieking123075@gmail.com. The defendant never disclosed this e-mail address to probation as required. Instead, the defendant gave his probation officer a different e-mail address that at some point became inoperative.

Many of the materials contained images of young girls wearing scanty dance costumes in provocative poses. The printouts had been annotated by hand, with the name of the girl written next to her image. The defendant also printed out biographical information from a Wikipedia entry on a reality television series about young girl dancers, and then annotated those biographies by underlining the children's names, ages, and information about their siblings. The defendant had also annotated a printout of performance information, highlighting the names and ages of the young dancers, and placing check marks next to some of their names. He also printed out lists of the children's names, calculated their ages from their birthdates, and drew "smiley" faces next to some of the names. He also printed out a list of devices resulting from a Google search seeking "ipods that plays videos." And he wrote that he wanted to download certain dance videos featuring child dancers "if or when I can get IPOD(s)."

Although defense counsel conceded during the hearing that the defendant's possession of these materials was a matter of concern for a person who, like the defendant, had previously been convicted of possessing child pornography, she argued that the defendant's conduct was not prohibited by the terms of his probation.

The judge expressed his concern about the defendant's possession of these materials, but he found that the Commonwealth failed to prove by a preponderance of the evidence that the defendant had engaged in unsupervised direct or indirect contact with minor children in violation of special condition two. As to special condition four, the judge found that the defendant's use of his e-mail account and his downloading of materials from the Internet constituted prohibited "use, enter[ing], visit[ing], participat[ing] in, or remain[ing] in any online chat room, bulletin board service, message board service, social networking site or service (for example, Facebook.com, Twitter.com, Instagram.com), or any other online communication service, with the sole exception of electronic mail." Finally, the judge found that the defendant violated special condition six by failing to disclose his e-mail address to probation.

During the disposition phase of the hearing, additional information was placed before the judge. Specifically, in October 2016, after the defendant expressed an interest in obtaining employment, the probation officer referred the defendant to a career center that monitors computer usage. Soon thereafter, the career center notified the probation officer that the defendant was observed viewing questionable materials, which turned out to consist of information about school massacres and violence at schools. The probation officer did not initiate probation violation proceedings on this occasion, but referred the matter to the Salem Police Department. The probation officer also suspended the defendant's permission to use the career center, warned the defendant that he was not to use the career center computers for such purposes,³ and continued to supervise him.

The defendant thereafter remained in compliance with his probation conditions, and so he was allowed by the probation officer to return to the career center in February 2017 because he continued to express an interest in finding a job. Not long thereafter, on March 6, 2017, the career center reported that the defendant was using the computer to view pictures of children. The probation officer obtained printouts of the results of the defendant's Internet viewing and search history, which the probation officer described as "basically identical" to the materials we have described above. The defendant had downloaded these materials from the Internet, but on that occasion there was no indication that he had used an e-mail account. The probation officer initiated probation violation proceedings, alleging that the defendant had violated his probation by "unauthorized use of the internet." A different Superior Court judge disagreed, and found that the Commonwealth had failed to establish probable cause, specifically noting that the materials were not child pornography.

A couple of months later, the defendant was found to possess the materials that form the basis of the probation violation proceedings at issue here. The probation officer introduced a letter from the defendant's therapist in which she stated she was concerned that the defendant was at risk to reoffend, that his participation in programming was poor, and that he harbored anger and remained in denial.

On these grounds, the...