Commonwealth v. Casbohm
Commonwealth v. Casbohm
Opinion of the Court
*614After a jury trial, the defendant was convicted on three indictments, charging aggravated rape of a child under the age of sixteen by means of sexual intercourse, that rape being aggravated by an age difference of more than ten years between them, G. L. c. 265, § 23A (indictment 1); posing and photographing a child under the age of eighteen in a state of nudity, "for the purpose of representation or reproduction in any visual material," G. L. c. 272, § 29A (a ) (indictment 6); and posing and photographing a child under the age of eighteen engaged in sexual conduct "for the purpose of representation or reproduction in any visual material," G. L. c. 272, § 29A (b ) (indictment 7).
The defendant appeals, arguing that (1) his separate convictions under *636G. L. c. 272, § 29A (a ) and (b ) are "duplicative" and amount to a violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution; (2) the trial judge erred in failing to give the jury a specific unanimity instruction; and (3) the prosecutor's closing argument was improper, as the prosecutor vouched for the victim's credibility, misstated the facts and the law, and appealed to the passions of the jurors. We affirm.
Background. The victim, Tatiana,
Tatiana's mother thought that her daughter should do something constructive during the summer before she started high school, and so she agreed with a coworker, the defendant's wife, that Tatiana would work for the Casbohm family as a babysitter that summer. The Casbohms had three young children, aged six, two, and one years old, and Tatiana's mother agreed with Mrs. Casbohm that Tatiana would babysit for the three children three or four days a week. In so doing, Tatiana would be responsible for feeding the children, bathing them, changing diapers, playing with them, taking them to the park, and picking the oldest child up from school. She was not paid for this work. However, the Casbohms did give her a prepaid cellular telephone (cell phone) so that she could reach them in case of an emergency.
One day, before her sixteenth birthday, Tatiana had been cleaning the Casbohms' apartment and was watching television in the Casbohm parents' bedroom. The defendant came home and asked her to sit on the bed with him. He began to rub her back and her shoulders and she asked him why he was doing that; she asked him to stop, but he persisted. Eventually, the defendant began to remove Tatiana's clothing. He got on top of her and removed her underwear; she tried to push him away, but she couldn't because he was stronger than she was. He eventually succeeded in having vaginal intercourse with her. Afterwards, the defendant changed the sheets, told Tatiana to shower, and lit candles to remove the smell.
*616Tatiana testified that the defendant took photographs of her -- "[e]ither during sex or being naked on his bed" -- with his cell phone. She said that he repeatedly *637photographed her breasts
On August 5, 2014, police officers searched the Casbohms' apartment after obtaining a search warrant. In all, the officers seized six cell phones, an Amazon Kindle electronic reader, a laptop computer, and syringes during the search. In particular, they found a cell phone belonging to the defendant in the room identified as "the parents' bedroom." On the defendant's seized cell phone, they found thousands of images and dozens of videos; additional images and videos had been deleted.
Discussion. 1. Double jeopardy. The defendant was convicted of photographing, "with lascivious intent," a child under the age of eighteen "in a state of nudity" in violation of G. L. c. 272, § 29A (a ).
*617as they involved photographs all of the same child and all seized from one cell phone. That is, he contends that all of the photographs together constituted only one crime, essentially that of "(a ) ... pos[ing] or ... exhibit[ing] [a child] in a state of nudity ... [or (b ) ] ... engag[ing] in ... sexual conduct ...." Compare G. L. c. 272, § 29B, prohibiting the dissemination of any visual material depicting a child in a state of nudity or engaged in sexual conduct, and G. L. c. 272, § 29C, prohibiting the "knowing[ ] purchase[ ] or possess[ion]" of such material. The defendant did not raise this issue at trial. However, "[e]ven if the issue was unpreserved, we will reverse a duplicative conviction. ... Accordingly, we proceed to the merits of the defendant's double jeopardy claim." Commonwealth v. Traylor,
In support of his double jeopardy claim, the defendant cites Commonwealth v. Rollins,
In the case before us, the defendant argues that, as in Rollins, the photos of the victim all had one locus -- the defendant's cell phone. He thus reiterates the "single cache" argument accepted in Rollins.
It is the "legislative prerogative to define crimes and fix punishments." Commonwealth v. Vick,
In Commonwealth v. Traylor, the court explained that, "[i]n ascertaining the unit of prosecution, our case law distinguishes between two broad categories of statutes. On the one hand, certain criminal statutes are 'focused upon the prevention of violence or physical injury to others.' Commonwealth v. Botev [
The defendant's citation to Dingle, supra, also fails to assist him. In Dingle, the defendant was charged with three counts of possession with intent to distribute child pornography in violation *619of G. L. c. 272, § 29B, and with two counts of distributing child pornography, also in violation of § 29B. The indictments recited that the defendant had committed the offense "by either distributing ... or possessing with the intent to distribute 'visual material that contained a representation or reproduction of a posture or exhibition in a state of nudity or an act that depicts, describes, or represents sexual conduct' ... of a child under eighteen years of age." Dingle,
2. Specific unanimity jury instruction. The defendant next argues that, because a number of photographs were admitted in evidence -- some depicting the victim, some depicting Mrs. Casbohm, and some depicting unidentified persons -- a specific unanimity instruction was required. He also maintains that because there were several images depicting a child posed in a state of nudity, and several others depicting a child engaging in a sexual *620act, a specific unanimity instruction was required. He contends that "there is no way to determine upon which exhibit(s) the jury may have based its guilty verdicts." The defendant did not make this argument at trial. While counsel did argue for an instruction warning against a compromise verdict, she did not, either orally or in writing, mention specific unanimity, or object when the judge did not give a specific unanimity instruction. We therefore review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage *640of justice. Commonwealth v. Shea,
"An instruction on specific unanimity is warranted 'when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.' Commonwealth v. Santos,
Repeatedly, in cases involving sexual assaults on children, the cases have held that a specific unanimity instruction was not required, where a victim testified to repeated assaults over a period of time and was able to provide "reasonably detailed descriptions of various distinguishable forms of abuse," even though the victim "did not identify discrete instances when particular acts took place, much less supply a list of dates and times." Commonwealth v. Sanchez,
It is clear in the case before us that this is such a case -- a criminal scheme was carried out consistently over a discrete period of time: that is, the defendant assaulted and photographed the victim each time she babysat for his children throughout the summer. There is no risk of jury confusion because the task for the jurors here was either to find the victim's testimony credible about the events of the summer or not. Further, each photograph admitted depicted the victim either nude, or engaging in sexual conduct, or both. Moreover, there clearly was evidence permitting the jury to determine which photos depicted Mrs. Casbohm and which depicted Tatiana -- through the testimony at trial, the jurors' personal observations of each person, and the photos.
*6223. Prosecutor's closing argument. Finally, the defendant argues that the prosecutor committed a number of errors during her closing argument. Specifically, he contends that the prosecutor appealed to the sympathies and "inflam[ed] the passions" of the jurors; that she vouched for the credibility of the alleged victim, using rhetorical questions and thereby shifting the burden of proof; and that she misstated the facts and the law.
"A prosecutor may argue 'forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.' Commonwealth v. Kozec,
We also note that only one of the errors that the defendant now argues drew an objection at trial. See Commonwealth v. Mazariego,
With these principles in mind, we address the arguments in turn. The defendant's first argument, that the prosecutor's closing appealed to the sympathies of the jury, fails. "A prosecutor is 'permitted and expected to marshal the evidence and to argue for a decision of the controversy in favor of his client.'
*642Commonwealth v. Johnson,
*623and "snatched [it]" (and similar comments) are strongly worded but not unfair descriptions of the facts.
"Although some of the prosecutor's remarks here did appeal to the jurors' sympathy, we do not think they went beyond 'tolerable hyperbole.' " Commonwealth v. Pearce,
Similarly, the prosecutor's repeated emphasis on the fact that the victim had just graduated from the eighth grade was based on the evidence admitted at trial; the prosecutor also referred repeatedly to the fact that the victim was fifteen years old at the time that the rape occurred -- an element the prosecutor was required to prove beyond a reasonable doubt. In addition, the victim was able to identify her body in one of the photographs by pointing out a necklace she had been given as a present when she graduated from the eighth grade, testimony that made her eighth grade graduation particularly relevant. We see no error.
Next, the defendant argues that the prosecutor improperly vouched for the credibility of the victim, when she asked the jury to consider whether the victim, as she testified, appeared to be capable of making up the story, and whether she looked like "she came before you in an effort to perpetuate a cold calculated fabrication? Or did she look like an eighteen-year-old junior in high school coming before a group of fourteen strangers and the man who raped her and his family and a judge and other strangers to talk about what happened to her after she graduated the eighth grade?" Again, the defendant did not object and, again, we see no error. This argument merely called upon the jurors to judge the victim's credibility based upon their observations of her testimony. In addition, it was a fair response to defense counsel's argument that "we know [the victim]'s motive to lie about this happening. She returned to the Casbohms' house in 2014 to do more babysitting. She didn't want to be there. It was another dreary summer of not getting paid for running after three kids."
The defendant's citation to Commonwealth v. Beaudry,
"Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed. ... [I]n context the prosecutor's comment here clearly constituted an invitation to the jury to think back to the witness's demeanor on the stand, along with a suggestion that her demeanor supported the credibility of her statements." Commonwealth v. Raposa,
Defense counsel twice interrupted the prosecutor's argument to object that she was arguing facts not in evidence, once when she argued that one of the exhibits depicted the victim engaged in sexual conduct with the defendant. The judge overruled that first objection, saying that he "consider[ed] [the prosecutor's argument] to be a reasonable inference." Later, defense counsel objected to the prosecutor's argument that, contrary to defense counsel's argument, the victim had not complained about not being paid for babysitting and also that the victim had said that she did not want to engage in sexual conduct with the defendant. The trial judge, appropriately, refused "to single out any particular statement," but stated that he would emphasize in his instructions *625that the jurors' "recollection trumps any representation made by counsel." In fact, the trial judge did give the instruction forcefully to the jury, before closing arguments and again in his final instructions to the jury, stating, "As I said just before the closing arguments and I will say again, if your memory of the testimony differs from a description of the evidence given by one of the attorneys, you are to follow your own collective recollection." Moreover, the prosecutor's statements, even if mistaken, did not go to the central issue of the case, which was whether the sexual conduct had occurred at all. No consent defense was available to the defendant, and the inferences to be drawn from the photographs clearly were for the jury. We see no error.
Finally, the defendant argues that the prosecutor misstated the law when she told the jurors that they could find the defendant guilty if they believed the victim, stating, "In this courtroom her testimony alone may be proof beyond a reasonable doubt." The defendant concedes that the victim's testimony was sufficient, by itself, to support the rape charge. However, he contends that the charges relating to production of child pornography required proof that "the photographs ... contained images of her and had been taken by [the defendant]." This argument ignores the fact that, as the Commonwealth argues, the victim did testify that the defendant posed and photographed her both nude and engaging in sexual conduct. We see no error.
For the foregoing reasons, the judgments *644are affirmed.
So ordered.
After the Commonwealth rested, the judge, with the Commonwealth's agreement, allowed a motion for a required finding of not guilty on indictments two through five, charging different forms of aggravated rape of a child.
The defendant was sentenced to a term of ten to twelve years in State prison on the aggravated rape of a child conviction and to concurrent ten-year probation terms to be served from and after the committed sentence on the convictions of posing a child in the nude and posing and photographing a child engaged in sexual conduct.
A pseudonym.
At the end of July, 2013, Tatiana turned sixteen years old.
At one point, when the Casbohms discovered that Tatiana had used all the minutes available on the prepaid cell phone for personal calls -- and then asked Mrs. Casbohm for money for feminine products, hoping to use the money to purchase more minutes -- they reported her to her mother. Tatiana's mother told her she would have to make up for it; Tatiana had already decided to give Mrs. Casbohm her own seventy-five dollar gift card, which she had received as a present.
Tatiana testified that the defendant later, on various occasions, placed his finger in her mouth and vagina, forced her to perform oral sex, and penetrated her anally. However, Tatiana could not remember if those things happened before her sixteenth birthday. For that reason, as noted supra, note 1, the judge, at the close of the Commonwealth's case, allowed, by agreement, the defendant's motion for a required finding of not guilty on indictments two through five.
Tatiana was able to identify a photograph of her breasts that was admitted in evidence because of her "eighth grade graduation necklace that [her] uncle had given [her]."
The number of images, including emoticons and Web site logos, totaled 22,715; 269 had been deleted.
General Laws c. 272, § 29A (a ), provides, in pertinent part:
"Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished ..." (emphasis added).
General Laws c. 272, § 29A (b ), provides, in pertinent part:
"Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to participate or engage in any act that depicts, describes, or represents sexual conduct for the purpose of representation or reproduction in any visual material, or to engage in any live performance involving sexual conduct, shall be punished ... " (emphasis added).
General Laws c. 272, § 29C, provides, in pertinent part:
"Whoever knowingly purchases or possesses a ... photograph or other similar visual reproduction, or depiction by computer, of any child whom the person knows or reasonably should know to be under the age of 18 years of age and such child is:
...
"(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child; with knowledge of the nature or content thereof shall be punished ..." (emphasis added).
Dingle also noted that (as in this case) the Commonwealth is not precluded from bringing separate indictments under the various subsections of the statute.
There are some physical differences between Tatiana and Mrs. Casbohm -- including skin tone and tan lines. In addition, although Tatiana could not identify her own vagina, Mrs. Casbohm told the jury which pictures were not of herself.
We have carefully considered each of the arguments in the defendant's brief. To the extent that any particular claim has not been addressed specifically herein, we have found it to be without merit. See Commonwealth v. Domanski,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.