Commonwealth v. Molina (Lawyers Weekly No. 10-023-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12022 COMMONWEALTH vs. JOSUE MOLINA. Suffolk. October 6, 2016. – February 7, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Obscenity, Child pornography, Dissemination of matter harmful to minor. Constitutional Law, Search and seizure, Confrontation of witnesses. Search and Seizure, Warrant, Computer. Evidence, Information stored on computer, Intent. Subpoena. Intent. Practice, Criminal, Subpoena, Restitution, Confrontation of witnesses. Restitution. Indictments found and returned in the Superior Court Department on August 27, 2012. A pretrial motion to suppress evidence was heard by Mitchell H. Kaplan, J.; the cases were heard by Brian A. Davis, J., and a motion for restitution was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Ethan C. Stiles for the defendant. Ryan E. Ferch, Assistant Attorney General (Nancy Ruthstein, Assistant Attorney General, also present) for the Commonwealth. BOTSFORD, J. The defendant, Josue Molina, appeals from his child pornography convictions under G. L. c. 272, §§ 29B and 29C, on three grounds. First, he argues that the search warrant for the apartment in which he was living was overbroad as to places and things to be searched. We disagree, concluding that the search warrant was appropriately particularized. Second, the defendant challenges the validity of the administrative subpoena that issued under G. L. c. 271, § 17B, for Internet service records; he argues that the subpoena, to be constitutional, could only be issued based on a showing of probable cause. We similarly reject this argument. Finally, the defendant argues that the Commonwealth failed to prove that he had the lascivious intent necessary to support a conviction under G. L. c. 272, § 29B (§ 29B). Although we agree with the defendant that lascivious intent is required to be proved with respect to every type of conduct proscribed by § 29B, we conclude that this requirement was met in this case. We affirm the defendant’s convictions. The Commonwealth cross-appeals, arguing that it is entitled to a restitution hearing in this case, and that the victim for whom the Commonwealth seeks restitution is not required as a matter of law to appear and testify in order to protect the defendant’s constitutional right of confrontation. We agree, and remand for the requested restitution hearing. Background.[1] a. File-sharing. The dissemination […]