Commonwealth v. Bundy, 2013 WL 2501933 (MA Supreme Court)

While playing an Xbox video game connected via the internet with a ten year old boy, appellant, 34 years old, utilized the web cam through the private chat function of the game and masturbated himself, thereby transmitting the masturbation over the internet.  In turn, the ten year old child masturbated also utilizing his web camera, thereby transmitting the child’s masturbation over the internet.

Appellant was convicted by a jury of posing or exhibiting a child in a state of sexual conduct.  A violation of the “live performance” prong of Mass. Gen. Laws ch. 272, §29A(b).  Appellant appealed arguing that the trial court erred in not granting a defense motion for required finding because the Commonwealth did not prove the “live performance” prong.

Appellant’s claims were that 1) the child’s masturbation did not meet the “performance” prong because the statute’s definition of performance is “any play, dance, exhibit or such similar activity performed before one or more persons.” 2) Appellant also argued that no “performance” could take place because the child’s masturbation over the internet did not meet the language of “before one or more persons.”

Statutory Interpretation: Where the draftsmanship of a statute is faulty or lacks precision, it is our duty to give [it] a reasonable construction. We must construe the statute “in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” In the instant case, the legislature enacted this statute to protect children from exploitation.  The victim’s use of the web cam connected to the internet resulted in the act being broadcast to appellant.  Therefore, the victim’s acts qualified as both “exhibit” and “similar activity.”

Physical Presence: The court held that performance does not expressly or implicitly require the physical presence of one or more persons.  In view of the advances in technology, a violation of the statute may occur without the defendant’s physical presence in the victim’s bedroom where the act of masturbation took place. The Legislature’s interest in protecting minors from sexual exploitation should not turn on the medium used (or not used in the case of actual presence). To hold otherwise would allow persons who sexually exploit children to evade prosecution so long as they do so with the use of technology.

Expert Testimony Attack:  Appellant claimed that the Commonwealth was required to present expert testimony on the use of Xbox and the internet.  The court held that no expert was needed because this was not the type of information that was beyond the common knowledge and understanding of the lay juror.  Additionally, the child victim testified extensively about the Xbox and its accessories, which the Commonwealth supplemented with photos through another witness.

“There was ample, uncontested testimony,  that the private live chat function, together with the use of a Web camera, allowed for a live, uninterrupted broadcast between Xbox users that displayed the live image of each user on each user’s television screen. Even if a lay juror did not have personal experience using an Xbox, a lay juror, from common experience and knowledge, could understand those concepts. The jury were not left to engage in conjecture.”

Practitioner Note: Allowing your child witness to teach the jury can be a powerful tool, both in terms of explaining technology on a lay level as well as giving the jury ample opportunity to form a credibility assessment of your witness.

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