Opinion
16-P-108
02-17-2017
COMMONWEALTH v. Evan INGERSOLL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge in the Superior Court dismissed one indictment charging the defendant, Evan Ingersoll, with posing or exhibiting a child in a state of nudity, G. L. c. 272, § 29A(a ), on the grounds of insufficient evidence. The Commonwealth appeals, and we reverse.
The defendant was also charged with four other crimes: two indictments for indecent assault and battery on a child, see G. L. c. 265, § 13B, one indictment for possession of child pornography, see G. L. c. 272, § 29C, and one indictment for photographing or videotaping an unsuspecting nude person, G. L. c. 272, § 105.
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To survive a motion to dismiss, the grand jury must be presented with evidence supporting a finding of probable cause as to each element of the charged crime. Commonwealth v. Walczak , 463 Mass. 808, 817 (2012) (Lenk, J., concurring). We recite the facts from the evidence presented to the grand jury in the light most favorable to the Commonwealth, Commonwealth v. Rodriguez , 75 Mass. App. Ct. 235, 238 (2009), and as they pertain to the charge dismissed.
The grand jury heard the accounts of two minors that on two separate occasions, the defendant invited them to visit his hotel to swim. There, the defendant directed them to pose for photographs in a separate bedroom while they were in bathing suits. One minor reported that the defendant had her lay on the bed and use pillows on the bed to pose. The grand jury was also presented with images recovered from electronic devices seized from the defendant's hotel room of the same two minors in various stages of undress, changing in and out of bathing suits. Other photographs from the devices showed the torso of an apparent child from the waist down with a hand touching the vaginal area. Lastly, the grand jury saw video recordings in a bathroom setting where the recording cameras were angled upward to focus on the genitals and buttocks of a person. Some video recordings showed young girls changing out of clothing into bathing suits or the opposite, with shots of full nudity. One person in the video recording was identified to be one of the complaining minors. One video recording depicted the defendant adjusting the camera with his face and hands clearly in view. Another video recording showed the backside of a minor with the defendant rubbing lotion onto various parts of her body.
In his motion to dismiss, the defendant argued that the evidence presented was insufficient to establish probable cause as to whether he "cause[d the] child to pose ... in a state of nudity" (emphasis supplied). G. L. c. 272, § 29A(a ), as appearing in St. 1988, c. 226, § 1. That is, the defendant claims the evidence must establish that he physically posed or instructed the minors to assume a posture while in a state of nudity. However, this view disregards other language in the statute that also criminalizes when a person "hires, coerces, solicits or entices, employs, procures, uses, ... encourages, or knowingly permits such child to pose or be exhibited in a state of nudity." G. L. c. 272, § 29A(a ).
The evidence presented to the grand jury was sufficient to establish probable cause that the defendant invited underage children to his hotel room in order to swim in the hotel pool. The defendant set up a hidden camera in the bathroom where the minors changed their clothing, and targeted the camera to record their private areas. The defendant's intent could be inferred by the fact that he directed the two minors to undress and to change into bathing suits where they would be before the camera. The resulting video footage captured the minors nude and included their genital areas. Photographs of young girls in bathing suits and in various stages of undress were found on electronic storage devices seized from the defendant's hotel room. One series of photographs depicted a young girl on a bed in various poses and in all different stages of taking her clothes off; these photographs were consistent with the way the two minors described being photographed by the defendant. The evidence was sufficient to establish probable cause that the defendant either used, caused, or knowingly permitted the two minors "to pose ... in a state of nudity." G. L. c. 272, § 29A(a ). See Commonwealth v. Provost , 418 Mass 416, 419 (1994) (defendant "knowingly permitted" posing by taking photographs in locker room as partially nude minor posed without having been asked).
The defendant's reliance on Commonwealth v. McCarthy , 385 Mass. 160 (1982), and Commonwealth v. O'Dell , 392 Mass. 445 (1984), is unavailing. In McCarthy , supra at 163-164, the indictment was ordered dismissed because the grand jury heard no evidence implicating the defendant in a crime; the only assertion presented by the Commonwealth was that the defendant was present when another individual committed a rape. In O'Dell , supra at 446-447, the indictment was dismissed because the grand jury was presented with the inculpatory portion of a statement attributed to the defendant from which an exculpatory portion had been removed.
The motion judge erred in dismissing the count of the indictment. The order allowing the defendant's motion to dismiss indictment number 14-0284-3 is reversed and an order shall enter denying the motion.
So ordered .
Reversed