Commonwealth v. Castro

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20-P-206 Appeals Court

COMMONWEALTH vs. CESAR CASTRO.

No. 20-P-206.

Suffolk. January 5, 2021. – April 27, 2021.

Present: Meade, Milkey, & Neyman, JJ.

Consent. Privacy. Evidence, Photograph, Authentication,
Intent. Practice, Criminal, Required finding.
Constitutional Law, Vagueness of statute.

Complaint received and sworn to in the Chelsea Division of
the District Court Department on March 7, 2018.

The case was tried before D. Dunbar Livingston, J.

Rachel T. Rose for the defendant.
Kathryn Sherman, Assistant District Attorney, for the
Commonwealth.

NEYMAN, J. Following a trial in the District Court, a jury

convicted the defendant, Cesar Castro, of photographing an

unsuspecting nude or partially nude person in violation of G. L.

c. 272, § 105 (b). On appeal, the defendant challenges the

sufficiency of the evidence, the admission of certain exhibits
2

on authentication grounds, and the constitutionality of the

first paragraph of § 105 (b). We affirm.

Background. We summarize the facts the jury could have

found, viewing the evidence in the light most favorable to the

Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677

(1979). In or around 2012 or 2013, the defendant and the victim

entered into a relationship. "At first it was just a

friendship, but then . . . [they] became romantically involved."

Although their "romantic relationship ended in 2015," on "bad

terms," they still communicated on occasion through text

messages.

In October 2017, the victim went on vacation in Mexico to

celebrate her birthday with her new boyfriend. On October 12,

during her return flight to Boston, she received notification of

Instagram messages1 from the defendant on her cell phone. The

victim recognized the Instagram account as the defendant's

because she had "follow[ed]" the account; the account name,

"letitflyceez," had always belonged to the defendant; the

profile photograph in the "icon" on the account was a photograph

of the defendant; and she had seen the defendant "post personal

things on this account before." Upon arrival in Boston, the

1 "Instagram, which can be downloaded as a cell phone
application, is a social media platform that enables users to
share photographic content and send messages to other users."
Commonwealth v. McMann, 97 Mass. App. Ct. 558, 558 n.1 (2020).
3

victim opened the Instagram direct messages and saw "a thread of

messages that he had sent." The first Instagram message

included a "screenshot" of text messages that the defendant had

sent to the victim's cell phone to wish her a happy birthday.2

The second Instagram message from the defendant said, "Wow,

can't even say nothing back." The following message from the

defendant contained "a photo, directly from the . . .

[defendant's] Instagram account." The photograph showed the

victim partially unclothed while lying in bed in the defendant's

apartment, and apparently sleeping.3 The words, "Maybe you'll

reply now," were displayed across the photograph.

After seeing the photograph, the victim "[f]reaked out,

started crying, [and] started calling [her] best friend to ask

her for advice." She felt "threatened" and "scared." The

victim did not know the date on which the defendant took the

photograph of her. She had never seen the photograph, was not

aware that the defendant had taken the photograph, did not know

that the photograph existed prior to receiving the message, did

2 The defendant had sent the text message to the victim on
her birthday. A telephone number was located at the top of the
screenshot of the text messages attached to the Instagram
message. The victim recognized that number as the defendant's
cell phone number on which she had communicated with him on
prior occasions.

3 The photograph, which was admitted in evidence as an
exhibit, showed the victim's naked buttocks. The victim
testified that she was sleeping when the photograph was taken.
4

not consent to the taking of the photograph, did not want the

photograph to be taken, and had "never taken a nude picture."

After viewing the photograph, the victim asked the

defendant, via text message, "What're your intentions with that

photo[?]" The defendant did not respond. The victim then

contacted the police.

Discussion. 1. Sufficiency of evidence. The defendant

argues that the Commonwealth presented insufficient evidence to

sustain a conviction for photographing an unsuspecting nude or

partially nude person. We apply the familiar test to determine

"whether, after viewing the evidence in the light most favorable

to the [Commonwealth], any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt" (emphasis and citation omitted). Latimore, 378 Mass. at

677. "If, from the evidence, conflicting inferences are

possible, it is for the jury to determine where the truth lies,

for the weight and credibility of the evidence is wholly within

their province." Commonwealth v. Lao, 443 Mass. 770, 779

(2005). See Commonwealth v. Nelson, 370 Mass. 192, 203 (1976)

(evidence need not require jury to draw inference; sufficient

that evidence permits inference to be drawn). See also E.B.

Cypher, Criminal Practice and Procedure § 37.10 (4th ed. 2014).
5

To establish a violation of the first paragraph of G. L.

c. 272, § 105 (b),4 the Commonwealth must prove that the

defendant (1) willfully photographed, videotaped, or

electronically surveilled; (2) another person who was nude or

partially nude; (3) with intent to secretly conduct or hide his

activity; (4) when the other person was in a place and

circumstance where she or he would have a reasonable expectation

of privacy in not being so photographed; and (5) without the

other person's knowledge or consent.5 See Commonwealth v.

Robertson, 467 Mass. 371, 375-376 (2014). The defendant does

not dispute the sufficiency of the evidence as to the first two

elements -- that he willfully photographed the victim, or that

she was partially nude at that time.6 Rather, he argues that the

4 The second and third paragraphs of § 105 (b), inserted by
St. 2014, c. 43, § 2, are not at issue in this appeal. See
generally Commonwealth v. Wassilie, 482 Mass. 562, 565 (2019).

5 The first paragraph of G. L. c. 272, § 105 (b), provides,
in relevant part:

"Whoever willfully photographs, videotapes or
electronically surveils another person who is nude or
partially nude, with the intent to secretly conduct or hide
such activity, when the other person in such place and
circumstance would have a reasonable expectation of privacy
in not being so photographed, videotaped or electronically
surveilled, and without that person's knowledge and
consent, shall be punished . . . ."

6 General Laws c. 272, § 105 (a), defines "partially nude"
as "the exposure of the human genitals, buttocks, pubic area or
female breast below a point immediately above the top of the
6

evidence was insufficient to prove the final three elements

delineated above -- that he took the photograph without the

victim's knowledge or consent, that the victim had a reasonable

expectation of privacy when the photograph was taken, and that

he took the photograph with the intent to secretly conduct or

hide his activity.7 We discuss the proof of each element in

turn.

We need not dwell at length on the defendant's assertion

that the Commonwealth failed to prove that he took the

photograph without the victim's knowledge or consent. Apart

from conclusory assertions that there was no such evidence, and

that the victim "did not testify that she had told [the

defendant] never to take such a photo," the defendant devotes no

analysis of this issue in his brief. See Tinsley v. Framingham,

485 Mass 760, 766 n.13 (2020), citing Mass. R. A. P. 16 (a) (9),

as appearing in 481 Mass. 1628 (2019) (argument made "in passing

. . . does not present any adequate appellate argument on the

point"); Commonwealth v. Norman, 87 Mass. App. Ct. 344, 347 n.6

areola." Here, there is no dispute that the photograph
displayed the victim in a state of partial nudity.

7 At trial, the defendant did not object to the admission of
the photograph as an exhibit. Rather, the defendant only
objected at trial to the admission of the screenshots of the
text message "thread." We address, infra, the separate and
distinct claim that the Instagram messages and their contents
were inadmissible on authentication grounds.
7

(2015) (single unsupported sentence in defendant's brief "does

not rise to appellate argument that we need consider");

Commonwealth v. Ciaramitaro, 26 Mass. App. Ct. 110, 114 n.5

(1988) (same).

Furthermore, and contrary to the defendant's claim, the

victim testified that she was not aware that the defendant had

taken the partially nude photograph, did not want the photograph

to be taken, had never taken nude photographs, was "sleeping" in

the photograph, and did not know of the existence of the

photograph prior to receiving the Instagram message. This

testimony alone was sufficient, under the Latimore standard, to

prove that the defendant acted without the victim's knowledge or

consent. The victim's reaction of shock and fear upon viewing

the photograph further speaks to her lack of knowledge or

consent.8 See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 433

8 It is of course possible that the victim's reaction of
surprise and horror at seeing the photograph stemmed from a
reason other than a lack of knowledge. However, a rational
juror -- viewing evidence of the victim's reaction in
conjunction with her direct testimony that she did not consent
to the photograph, did not know that the defendant took the
photograph, and never took nude photographs -- could have
reasonably inferred that her reaction was indicative of her lack
of knowledge and consent. This was a classic jury question.
See Lao, 443 Mass. at 779. See also Commonwealth v. Giang, 402
Mass. 604, 609 (1988), quoting Commonwealth v. Drew, 4 Mass.
App. Ct. 30, 32 (1976) ("Whether an inference is warranted or is
impermissibly remote must be determined, not by hard and fast
rules of law, but by experience and common sense"); Commonwealth
v. Casale, 381 Mass. 167, 173 (1980) ("inferences drawn by the
8

(2006) ("we do not require an explicit verbal or physical rebuff

to prove lack of consent. Instead, we analyze lack of consent

based on the totality of the circumstances"). See also

Commonwealth v. Arana, 453 Mass. 214, 225 (2009) ("Evidence of a

victim's state of mind or behavior following a crime has long

been admissible if relevant to a contested issue in a case").

The defendant next argues that the Commonwealth failed to

prove that the victim was "in such place and circumstance" where

she "would have a reasonable expectation of privacy in not being

so photographed." G. L. c. 272, § 105 (b). The defendant

maintains that in view of the then-intimate relationship between

the defendant and the victim, and the absence of evidence of any

specific ban on nude photography in their relationship, the

victim did not have a reasonable expectation of privacy in the

bedroom of her boyfriend's apartment. To the contrary, he

contends, "the bedroom is exactly where nude photos are most

likely to be taken." In effect, the defendant argues that,

barring evidence of an explicit prohibition on such activity, if

one can see something in his or her bedroom, one can photograph,

videotape, or memorialize it. The argument is unavailing.

The defendant's argument misperceives the requirements of

the statutory element. As the Supreme Judicial Court has

jury need only be reasonable and possible and need not be
necessary or inescapable").
9

explained, § 105 (b) requires that the person being photographed

be "present in a place, private or not, where in the particular

circumstances she would have a reasonable expectation of privacy

in not being wilfully and secretly photographed while in that

state" (emphasis added). Robertson, 467 Mass. at 380. Thus,

the language of § 105 (b) does not speak to a generalized

expectation of privacy, but to the reasonable expectation of

privacy in not being "secretly" photographed, while nude or

partially nude, in that "place and circumstance." Here, the

victim was sleeping in her boyfriend's bedroom, a private place,

and had a reasonable expectation of privacy in not having her

partially naked body so photographed. See id. at 379-380.

Simply because the victim was sleeping partially nude did not

mean that she agreed to allow her body to be preserved in a

photographic image, with the concurrent risk that the preserved

image might be shared, displayed, or used for any other purpose

in perpetuity. A person does not forever forfeit all privacy

rights, without limitation, by engaging in intimate or personal

contact with another. Cf. Commonwealth v. Nascimento, 91 Mass.

App. Ct. 665, 667 (2017) ("A person does not lose all reasonable

expectation of privacy in his or her covered 'sexual or intimate

parts' simply by being in public").

The defendant next argues that there was insufficient

evidence that he took the photograph "with the intent to
10

secretly conduct or hide such activity." The defendant claims

that taking candid photographs of a significant other for

personal or sentimental reasons is not uncommon; that at the

time he took the photograph he could have been acting

spontaneously; and that there was no evidence for a juror to

infer the requisite specific intent. We disagree.

To be clear, the Commonwealth was obligated to prove the

defendant's specific intent at the time of the actus reus --

here, the taking of the photograph. Although the sending of the

photograph accompanied by the statement, "Maybe you'll reply

now," was reprehensible, the defendant was not charged with

unlawful dissemination of the image under G. L. c. 272, § 105

(c),9 and cannot be punished for that act in this case. That

notwithstanding, the Commonwealth introduced ample

circumstantial evidence to meet its burden. See Commonwealth v.

Casale, 381 Mass. 167, 173 (1980) ("A person's knowledge or

intent is a matter of fact, which is often not susceptible of

proof by direct evidence, so resort is frequently made to proof

by inference from all the facts and circumstances developed at

the trial").

9 General Laws c. 272, § 105 (c), provides, in relevant
part, "Whoever willfully disseminates the visual image of
another person, with knowledge that such visual image was
unlawfully obtained in violation of the first and second
paragraphs of subsection (b) and without consent of the person
so depicted, shall be punished . . . ."
11

Specifically, the defendant chose to take the photograph of

the partially nude victim while she was sleeping and without her

consent. This fact, viewed in conjunction with the other

evidence delineated supra, could have been viewed by a rational

juror as evidence that he intended to secretly conduct the

photographing activity. Furthermore, as detailed supra, the

victim did not know that the defendant had taken the nude

photograph, did not want the photograph to be taken, and had

never taken nude photographs. In addition, the defendant

withheld the existence of the secretly taken photograph from the

victim until he sent it through the Instagram message. The

combination of this evidence was sufficient to satisfy the

statutory intent element.

In addition to the foregoing evidence, the defendant's

written statement, "Maybe you'll reply now," viewed in

connection with the totality of the evidence, could have been

considered as evidence of his earlier intent to secretly conduct

or hide his photographing activity. Although the written

statement and its dissemination along with the photograph was

not the actus reus at issue here, it is black letter law that

evidence of acts committed subsequent to a charged offense "may

be admitted in the judge's discretion to establish . . . intent

. . . or state of mind at the time of the crime," so long as it

is not too remote in time. Commonwealth v. Cardarelli, 433
12

Mass. 427, 434 (2001). See Commonwealth v. Rubin, 165 Mass.

453, 456 (1896) (Holmes, J.) (discussion of rule that subsequent

conduct may be some evidence of party's original intent). Here,

a rational juror could have viewed the written statement as a

threat, and in conjunction with the totality of evidence at

trial, as an implied admission by the defendant that he had

secretly taken the photograph and withheld its existence in

order to later leverage, coerce, threaten, harass, or intimidate

the victim. See Commonwealth v. Fernandes, 427 Mass. 90, 94 n.2

(1998).

2. Authentication. The defendant contends that the judge

abused his discretion in admitting the photograph within the

Instagram message without sufficient authentication. This

argument suffers from two initial shortcomings: (1) the

defendant did not object at trial to the admission of the

photograph in evidence, see note 7, supra; and (2) the defendant

was convicted for secretly photographing the victim, and not for

disseminating the image. Thus, the jury's assessment did not

hinge on whether the Commonwealth proved that the defendant sent

the photograph to the victim, but on whether the Commonwealth

proved that the defendant took the photograph with the requisite

intent. Insofar as the issue now proffered on appeal was not

raised at trial, our review is limited to whether any alleged

error created a substantial risk of a miscarriage of justice.
13

See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).

Regardless of the standard of review, we discern no error, as

the Commonwealth presented substantial evidence to establish by

a preponderance of the evidence that the defendant both took the

photograph and sent the Instagram messages.

The defendant argues, inter alia, that it is "far from

impossible" that someone other than he might have had access to

a screenshot of him wishing his former girlfriend a happy

birthday as well as her partially nude picture taken years

earlier. While that may be so, "far from impossible" is not the

legal standard at issue. Rather, "[w]ith regard to the

authentication of evidence, the judge has a gatekeeper role,

which requires the judge to assess the evidence and determine

whether the jury or judge, acting as the fact finder, could find

that the item in question is what its proponent claims it to be.

See Mass. G. Evid. § 104(b) (2019)." Commonwealth v. Meola, 95

Mass. App. Ct 303, 308 (2019). "[T]here is no requirement that

there be direct evidence to support a determination that a

digital communication was sent by [a] defendant." Id. at 310-

311. "Rather, a judge making this threshold determination may

consider circumstantial evidence and look to 'confirming

circumstances' sufficient for a reasonable jury to find by a

preponderance of the evidence that the defendant [took and sent

the photograph]." Id. at 311, quoting Commonwealth v. Purdy,
14

459 Mass. 442, 450 (2011). See Mass. G. Evid. § 901(b)(11)

(2021).

In the present case, the photograph shows the victim

sleeping partially naked in a bed, and the victim testified that

the photograph showed her sleeping in the defendant's bed. In

addition, the Commonwealth introduced abundant evidence in the

form of confirming circumstances as contemplated by our case

law. First, the victim testified that the unique name on the

Instagram account, "letitflyceez," belonged to the defendant;

that he always had the same Instagram account; that she had seen

photographs of the defendant on this account on prior occasions;

and that she had seen him post personal things on this account.

Second, the defendant's photograph was in the "icon" of this

Instagram account. Third, the victim recognized the text

messages contained within the Instagram account as messages sent

from the defendant's cell phone number to the victim's cell

phone number. Indeed, she recognized the defendant's number

because it was her means of communicating with him, she had

previously paid the bill for the defendant's cell phone account,

and they had communicated "on this number before" about matters

that only the victim and the defendant "knew" or "would know in

particular." See Purdy, 459 Mass. at 451.

Fourth, the messages from the defendant accurately

referenced the victim's birthday, and were part of the text
15

message thread that she had received on her own cell phone.10

Fifth, the victim testified that she slept in the nude or

partially nude, on occasion, in the defendant's bedroom, and the

photograph depicted the victim sleeping, partially nude, in the

defendant's bedroom. Furthermore, she slept in a state of

nudity or partial nudity only when she and the defendant were

alone. Thus, it would be unlikely that another person would

have taken the photograph.

Finally, the text messages showed escalating conduct by the

author, culminating in the victim's receipt of the photograph

containing the implied threat. Consistent with this chain of

events, the evidence showed that, prior to receiving the

photograph, the victim's relationship with the defendant had

ended on "bad terms," she had not replied to his text message

containing birthday wishes, and had not responded to his follow-

up text message. In short, the proponent of the evidence --

here the Commonwealth -- presented myriad confirming

circumstances "beyond simply the fact that the message was sent

from an account in the name of the alleged author." Meola, 95

Mass. App. Ct. at 314-315. See Commonwealth v. Oppenheim, 86

Mass. App. Ct. 359, 368 (2014) (no error in admission of

10The victim described the "first screenshot," showing the
text messages from the defendant, as part of a text conversation
that she had with the defendant because "it was literally what I
had in my phone a couple of days prior in text messages."
16

computer instant message conversations between defendant and

witness in light of confirming circumstances beyond sender's

self-identification that tended to corroborate authenticity of

message from apparent author). Contrast Commonwealth v. McMann,

97 Mass. App. Ct. 558, 562 (2020) (Commonwealth did not prove

beyond reasonable doubt that defendant was person who wrote or

sent message to victim "either through evidence that the message

itself contained characteristics showing that the defendant

wrote it, or through evidence establishing how secure Instagram

accounts are and how the Instagram cell phone application

works"). Accordingly, the admission of the photograph,

Instagram messages, and the content therein was not error and

did not create a substantial risk of a miscarriage of justice.11

3. Constitutional challenge. The defendant contends, for

the first time on appeal, that G. L. c. 272, § 105 (b), is

11The defendant also argues that the judge erred in failing
to instruct the jury that before considering the content of the
digital messages, they must find that the defendant sent such
messages. At trial, the defendant did not raise this issue,
request such an instruction, or object to any instructions in
the final charge. Even assuming error, we discern no
substantial risk of a miscarriage of justice here in view of the
judge's clear and accurate instructions regarding the elements
of the offense and burden of proof. See Commonwealth v. Gilman,
89 Mass. App. Ct. 752, 759 n.8 (2016) (where judge did not
instruct jury to find that defendant authored Facebook chat
messages and "the defendant neither requested such an
instruction nor objected to the instructions administered,"
there was no substantial risk of miscarriage of justice "[i]n
light of the abundance of evidence that the defendant authored
the messages attributed to him").
17

unconstitutionally vague and overbroad. "We generally decline

to consider constitutional issues for the first time on appeal

in order to avoid an unnecessary constitutional decision"

(quotation and citation omitted). Commonwealth v. Guzman, 469

Mass. 492, 500 (2014). Here, the defendant proffers a facial

challenge to the statute that should have been raised in a

pretrial motion to dismiss. See Commonwealth v. Chou, 433 Mass.

229, 238 (2001). Although our appellate courts have, on

occasion, exercised "discretion to consider important questions

of public concern raised for the first time on appeal," we

hesitate to do so when "the record accompanying them is lacking,

as is the case here, in providing a basis for their intelligent

resolution." Gagnon, petitioner, 416 Mass. 775, 780 (1994).

Compare Commonwealth v. Yasin, 483 Mass. 343, 349-350 (2019).

Here, the issue was not raised in the trial court, and was

neither an extension of arguments raised at trial nor connected

to the defense at trial. That notwithstanding, even reviewing

the unpreserved facial vagueness and overbreadth challenges for

a substantial risk of a miscarriage of justice, as the defendant

urges, the claim is unavailing. See Chou, 433 Mass. at 238;

Commonwealth v. Golding, 86 Mass. App. Ct. 55, 59 n.7 (2014).

On the facts of this case, we discern no such risk in view of

the statute's specific intent requirement, and the added

elements specifying the need to prove that the photographing
18

activity was conducted without the subject's knowledge or

consent, and conducted where the subject was in a place and

circumstance where he or she would have a reasonable expectation

of privacy in not being so photographed. These elements are

"sufficiently specific so as to give fair notice as to what

conduct is forbidden." Commonwealth v. Wassilie, 482 Mass. 562,

576 (2019), quoting Commonwealth v. Adams, 389 Mass. 265, 270

(1983). See Commonwealth v. Provost, 418 Mass. 416, 422 (1994)

(where "statute is readily subject to a narrowing construction,

the doctrine of overbreadth may not be employed" [quotation and

citation omitted]). See also Wassilie, supra (concluding that

third paragraph of § 105 [b] is not unconstitutionally vague).

Judgment affirmed.