Commonwealth v. Milan

Summary

The Massachusetts Appeals Court affirmed Michael T. Milan’s convictions for six counts of disseminating harmful material to a minor. The court rejected challenges to the indictments and alleged constructive amendment, found no error in the jury instruction concerning the defendant’s belief about the recipient’s age, and upheld the trial judge’s handling of lost or destroyed evidence. The court also concluded that testimony about the missing social-media post was admissible as secondary evidence.

Holdings

1. The indictments were sufficient because they clearly charged dissemination of harmful material to a minor under G. L. c. 272, § 28, gave the defendant adequate notice of the accusation, and did not need to set out every statutory element verbatim.
2. The prosecutor's statement that Milan sent explicit messages to an undercover officer posing as a fourteen-year-old did not constructively amend the indictments.
3. The trial judge properly refused the requested instruction stating that the Commonwealth had to prove that Milan was convinced to a moral certainty that the recipient was a minor.
4. The judge did not abuse his discretion by denying dismissal or other relief based on the Commonwealth's failure to preserve the original profile photograph and initial social-media post.
5. The judge did not abuse his discretion by admitting the officer's testimony about the contents of the lost initial post.
6. The judge did not abuse his discretion by instructing the jury concerning only the missing profile photograph and not the introductory text messages.

Questions Presented

1. Whether the indictments were legally insufficient because they omitted the statutory requirement that the defendant purposely disseminate harmful matter to a person he knows or believes to be a minor.
2. Whether the prosecutor's opening statement constructively amended the indictments by stating that the recipient was an undercover police officer posing as a fourteen-year-old.
3. Whether the trial judge erred by refusing the defendant's requested instruction defining the defendant's belief that the recipient was a minor.
4. Whether the judge abused his discretion by denying dismissal or other relief based on the Commonwealth's loss or destruction of the undercover officer's original profile photograph and initial post.
5. Whether admitting the officer's testimony about the lost initial post violated the best evidence rule, and whether the lost-evidence jury instruction was inadequate because it referred only to the profile photograph.

Disposition

affirmed