Commonwealth v. Ericson (Lawyers Weekly No. 11-050-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑1639 Appeals Court COMMONWEALTH vs. KEITH ERICSON. No. 12‑P‑1639. Middlesex. December 11, 2013. ‑ May 23, 2014. Present: Green, Sikora, & Milkey, JJ. Obscenity, Dissemination of matter harmful to minor. Practice, Criminal, Motion to suppress, Warrant, Probation. Cellular Telephone. Search and Seizure, Plain view, Warrant. Evidence, Intent. Intent. Indictments found and returned in the Superior Court Department on February 1, 2011. A pretrial motion to suppress evidence was heard by Sandra L. Hamlin, J., and the cases were tried before her. Michael A. Nam‑Krane for the defendant. Michael A. Kaneb, Assistant District Attorney (Patrick Fitzgerald, Assistant District Attorney, with him) for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant, Keith Ericson, of soliciting, enticing, or encouraging a child to pose in a state of nudity, G. L. c. 272, § 29A(a), as appearing in St. 1988, c. 226, § 1, and of possession of matter harmful to minors with intent to disseminate, G. L. c. 272, § 28, as appearing in St. 1982, c. 603, § 2. He challenges the convictions upon multiple grounds. For the following reasons, we affirm. Factual background. The relevant evidence in the light most favorable to the Commonwealth was the following. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). On the afternoon of September 25, 2010, the defendant approached A.S., a sixteen year old female, and her boyfriend in a park in the town of Burlington. The defendant claimed to have lost his cellular telephone (cell phone) and asked to borrow A.S.’s cell phone. At the defendant’s direction, A.S. placed a number of calls to the defendant’s phone. Each call ended with a voice-mail greeting for the construction company “H Super Construction” or “Super Construction.” After five or ten minutes, the defendant reported that he had located his phone. Upon leaving the park, A.S. observed the defendant’s black pickup truck. The license plate read “H Super,” and the truck had a Superman symbol emblazoned on its side. Later that afternoon, A.S. began to receive text messages from the defendant’s cell phone. The messages included a number of personal questions. The defendant asked A.S. her name and age, whether she had a boyfriend, and whether she smoked or drank. After A.S. responded that she was sixteen years old and that she did not drink or smoke, the defendant […]