Commonwealth v. Buswell (Lawyers Weekly No. 10-080-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11378 COMMONWEALTH vs. MICHAEL D. BUSWELL. Plymouth. January 6, 2014. ‑ May 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Attempt. Rape. Indecent Assault and Battery. Obscenity, Dissemination of matter harmful to minor. Enticement of Minor. Evidence, Information stored on computer, Prior misconduct. Search and Seizure, Computer, Probable cause, Consent. Probable Cause. Consent. Entrapment. Practice, Criminal, Motion to suppress, Stipulation. Indictments found and returned in the Superior Court Department on August 11, 2006. A pretrial motion to suppress evidence was heard by Jeffrey A. Locke, J., and the cases were tried before Richard J. Chin, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jason Benzaken for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. DUFFLY, J. A Superior Court jury found the defendant guilty on one indictment charging enticement of a child under the age of sixteen, G. L. c. 265, § 26C, and four indictments charging attempts to commit certain offenses, G. L. c. 274, § .[1] The offenses underlying the convictions of attempt were rape of a child under the age of sixteen, G. L. c. 265, § 23; indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; and two charges of disseminating matter harmful to a minor, G. L. c. 272, § 28. The defendant’s motions for required findings of not guilty were denied. In his direct appeal, the defendant argued that the Commonwealth failed to provide sufficient evidence of an overt act, a necessary element to establish attempted rape of a child and attempted indecent assault and battery on a child, and that his electronically transmitted “conversation” did not constitute “matter” under the terms of G. L. c. 272, § 28, so that the Commonwealth had not met its burden of proof to establish dissemination of matter harmful to a minor. The defendant also argued that certain evidence obtained following a forensic examination of his computer should have been suppressed or excluded at trial, and that the Commonwealth failed to provide evidence of a predisposition to commit the charged offenses sufficient to overcome his defense of entrapment. In a divided opinion, a majority of the Appeals Court affirmed the convictions of […]