Commonwealth v. Steed , 95 Mass. App. Ct. 463 ( 2019 )


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    18-P-172                                                 Appeals Court
    COMMONWEALTH     vs.   CHARLES STEED.
    No. 18-P-172.
    Middlesex.       April 9, 2019. - June 11, 2019.
    Present:    Green, C.J., Sullivan, & Ditkoff, JJ.
    Deriving Support from Prostitution. Trafficking. Evidence,
    Authentication, Hearsay. Practice, Criminal, Argument by
    prosecutor, Instructions to jury, Failure to object.
    Indictments found and returned in the Superior Court
    Department on March 21, 2017.
    The cases were tried before Merita A. Hopkins, J.
    Adam Us for the defendant.
    Caitlin Lyta Gemmill, Assistant District Attorney, for the
    Commonwealth.
    GREEN, C.J.       On appeal from his convictions of trafficking
    of persons for sexual servitude and deriving support from the
    earnings of a prostitute, the defendant challenges the
    sufficiency of the evidence supporting the latter charge,
    because police placed him under arrest before he received any
    2
    portion of the money paid by an undercover officer to a
    prostitute for sexual services as part of a "sting" operation.
    On the evidence in the case before us, we conclude that the
    interruption of the transaction before the defendant gained
    physical possession of his share of the proceeds does not bar
    his conviction on a charge of deriving support from a
    prostitute, as a share of the money was his, by prior
    arrangement, as soon as it was paid by the officer to one of the
    women trafficked by the defendant.   Discerning in the
    defendant's other claims1 no cause to disturb the judgments, we
    affirm.
    Background.   We summarize the evidence the jury could have
    found, viewed in the light most favorable to the Commonwealth.
    See Commonwealth v. Latimore, 
    378 Mass. 671
    , 676-677 (1979).
    On January 12, 2017, a police sergeant with the Woburn
    Police Department began an undercover investigation into human
    trafficking.   The officer began the investigation by locating an
    advertisement on Backpage.com, an "online classified" services
    website frequently used to advertise escort services.     The
    officer's attention was drawn to a particular advertisement
    because it involved a telephone number that he recognized from
    1 The defendant also claims error in the admission of
    certain evidence and in the jury instructions, and contends that
    the prosecutor's closing argument created a substantial risk of
    a miscarriage of justice.
    3
    another investigation.   The advertisement contained images of
    two females and offered a "two girl special."    The advertisement
    gave two telephone numbers, one ending in 7659 and one ending in
    6078, to contact the women to arrange a meeting.    The
    advertisement was labeled with a unique Backpage.com "Post ID"
    of 37877418.   The officer then prepared an undercover operation
    to contact the women in the advertisement.     He called and texted
    both numbers but received a response only from the 6078 number;
    the officer then arranged a "date" with the person on the other
    end of that telephone number.2   He arranged to meet two women for
    the price of $500 at a hotel in Woburn that evening.
    The defendant drove two women, D.M. and V.G., to the
    designated Woburn hotel to meet the officer.    While en route,
    D.M. communicated with the officer by cell phone to let him know
    that she and V.G. were on their way to the hotel.    The defendant
    provided the women with condoms to bring on the date.     The
    defendant was nervous about the date and insisted that D.M. ask
    the officer to send a "dick pic" to her to verify that he was
    2 The officer explained that a "date" in that context
    described "a meeting . . . for the delivery of commercial sexual
    services."
    4
    not a police officer.3   D.M. then text messaged a photograph of
    herself and V.G. to the officer.4
    The defendant dropped the two women off at the designated
    hotel in Woburn, where the officer was waiting.    The officer
    gave D.M. $500 in cash and discussed what he wanted them to do.
    D.M. placed the $500 in her purse and sent a text message to the
    defendant saying, "We're good," meaning that she had the money.
    At that point, the officer signaled to other officers waiting in
    adjoining hotel rooms, and they began interviewing V.G. and D.M.
    Both women gave the officers their cell phones and
    consented to searches of those cell phones.    Through their
    interviews with V.G. and D.M., the officers were able to
    identify the other woman in the January 12, 2017, Backpage.com
    advertisement as O.S.    All three women testified at trial
    pursuant to a grant of immunity.
    V.G. was present at the encounter at the Woburn hotel.      She
    met the defendant approximately two years prior to trial while
    homeless in Boston; the defendant saw her, pulled his car over,
    offered her "crack" cocaine, and gave her his cell phone number.
    3 The officer explained that a "dick pic" is a photograph of
    the prospective customer's penis. The officer declined to send
    the requested picture.
    4 D.M. was one of the two women depicted in the Backpage.com
    advertisement for a "two girl special."
    5
    She knew the defendant by the nicknames "Rick," "Tyreki," and
    "Cash."   The "next time" she saw the defendant, she began
    working for him as a prostitute.   In exchange for her services,
    the defendant fed her cocaine and heroin addiction.     The
    defendant told her they "could make money," "took [her] to a
    store and bought [her] new clothes, took [her] to a house and
    gave [her] a shower[,] [a]nd put an ad on Backpage."     The
    defendant posted advertisements for V.G.'s sexual services
    online on Backpage.com; she witnessed him post those
    advertisements, which referred to her as "Honey," the nickname
    he gave her, "on multiple occasions."   She also saw the
    defendant pay for the advertisements on multiple occasions using
    "a prepaid card."   The defendant gave V.G. a cell phone on which
    customers could contact her to arrange a date.     The defendant
    also arranged hotel rooms for V.G. to meet with customers and
    drove her to those hotels or to customers' homes.     The only
    person who ever drove her to meet a customer was the defendant,
    and the defendant set all the monetary rates for her sexual
    services.   Dates with V.G. always involved sex.
    In December 2016, V.G. was hospitalized for several weeks
    with a wrist infection that required surgery.      After her
    surgery, V.G. left the hospital against medical advice.        The
    defendant picked her up from the hospital with an intravenous
    line still in her body and brought her to a hotel in Boston,
    6
    where she "got high and started talking about working again;
    doing dates."   The encounter with the Woburn police officer
    occurred less than twenty-four hours after the defendant picked
    her up from the hospital.
    D.M., the other woman present at the encounter at the
    Woburn hotel, met the defendant in the summer of 2016 when she
    was addicted to heroin and "crack"; the defendant "picked [her]
    up for a date," which meant "sex for money," and told her
    afterward that he sold "crack," which she wanted.    She knew the
    defendant by the name "Cash."
    She began working for the defendant in October 2016,
    immediately after she was released from a drug treatment center.
    The defendant created advertisements for her sexual services
    that were "posted on Backpage."   D.M. occasionally watched the
    defendant create these advertisements.   The defendant set the
    "rate" for her sexual services and listed the number of the
    prepaid cell phone he gave her as the contact number on the
    advertisements.   Customers contacted her by text messaging or
    calling her cell phone to set up dates, and the defendant drove
    her to those dates.   The defendant sometimes spoke directly with
    those customers, and other times D.M. would speak with the
    customers.   Dates with D.M. usually involved sex.
    D.M. knew there was an advertisement for her services
    posted on Backpage.com on January 12, 2017, "[b]ecause we did it
    7
    every day," meaning that the defendant posted an advertisement
    for her on Backpage.com every day, "and [the] phone that [she]
    used never stopped ringing."   D.M. paid the defendant fifty
    percent of her earnings from a date with a customer, but
    "inevitably it all went to [the defendant]" because she would
    also buy drugs from him.   D.M. identified two of the images on
    the January 12, 2017, Backpage.com advertisement at trial as her
    own face and body, recognized her own cell phone number in the
    advertisement, and denied making the advertisement herself.     She
    further testified that the defendant was "in control of every
    phone on every encounter," so he knew what the arrangements were
    with customers who responded to the Backpage.com advertisements.
    Following the officer's meeting with V.G. and D.M. at the
    Woburn hotel, the defendant was pulled over on the highway by
    other officers, arrested, and searched.   Inside the defendant's
    vehicle, officers located a large bag of condoms, numerous cell
    phones, and an unknown female's driver's license.   The defendant
    had $1,190 in cash on his person at the time of arrest.
    Officers also seized a cell phone from the defendant's person;
    the number assigned to that cell phone ended in 9709.
    Business records showed that the 9709 cell phone number was
    registered to a "Cee Cash Brown"; this was also the same number
    listed in the cell phone obtained from D.M. under the contact
    name "C Cash" and in the cell phone obtained from V.G. under the
    8
    contact name "Cash."     The cell phone in the possession of V.G.
    was a cell phone "used mostly" by the defendant "for business
    purposes."    A forensic examination of that cell phone revealed
    an associated e-mail address of ceecash85@gmail.com, images of
    the defendant, and images of the women in various stages of
    undress.     Finally, business records for the January 12, 2017,
    Backpage.com advertisement showed that the unique Backpage.com
    "Post ID" was registered to the same e-mail address,
    ceecash85@gmail.com, and had an associated telephone number
    ending in 9709 –- the same number as the cell phone in the
    defendant's possession.
    O.S., whose photograph and telephone number also appeared
    in the Backpage.com advertisement to which the undercover
    officer responded on January 12, 2017, also testified at trial,
    though she was not present at the encounter at the Woburn hotel.
    The defendant first approached O.S. in the summer of 2016 when
    she was homeless in Boston and asked her if she would "like to
    party and make money."     She knew him by the nicknames "C,"
    "Cash," and "Rick."     The defendant took her to Cape Cod to
    provide sexual services for payment.     At the time, she was
    addicted to heroin and "crack."     The defendant supplied her with
    drugs, which she would pay for out of her earnings while working
    for the defendant.     She always paid the defendant forty percent
    of the proceeds of her dates and would then pay him additional
    9
    amounts for drugs.    The defendant advertised her sexual services
    "on Backpage."   The defendant was responsible for setting rates
    for her sexual services and always drove her to the dates.
    Though O.S. was not present for the date arranged at the Woburn
    hotel, she recognized various characteristics about the
    advertisement the undercover officer responded to.       She
    identified two photographs of herself in the advertisement,
    identified the description "Nerd Librarian" in the advertisement
    as a nickname given her by the defendant, and identified one of
    the telephone numbers listed in the advertisement as being hers.
    She also recognized another photograph in the advertisement as
    depicting D.M.
    Discussion.      1.   Sufficiency of the evidence.   To establish
    the crime of deriving support from the earnings of a prostitute
    under G. L. c. 272, § 7, the Commonwealth must prove "that a
    particular individual was a prostitute, that the defendant knew
    the individual was a prostitute, and that the defendant shared
    in some way in the earnings or proceeds of this person's
    prostitution."   Commonwealth v. Purdy, 
    459 Mass. 442
    , 454 n.10
    (2011).
    The defendant's principal challenge to the sufficiency of
    the evidence rests on his observation that he did not receive
    any portion of the money paid by the undercover police officer
    to one of the women trafficked for sexual services on January
    10
    12, 2017, and his contention that evidence of his receipt of
    some portion of that money was essential to prove the crime.5     We
    reject the defendant's contention that interruption of the
    transfer to him of money paid for sexual services to a person he
    has trafficked precludes a conviction of deriving support from a
    prostitute on the basis of that payment -- at least in the
    circumstances of the present case.   D.M., who received payment
    from the undercover officer, testified that she would give the
    defendant fifty percent of her earnings from a date with a
    customer (and also testified that she had done so on numerous
    prior occasions).   In such circumstances, a rational jury could
    conclude that the defendant's share of the proceeds became his,
    by prior arrangement, as soon as payment was received by D.M.,
    and that his share of the funds was simply held by her on his
    behalf pending her delivery of that share to him.6
    5 The defendant's challenge to the sufficiency of the
    evidence that he knew the women were prostitutes is without
    merit for a variety of reasons, not least because the women
    testified that they would pay the defendant a share of the funds
    received from dates the defendant arranged for them, that he
    drove them to and from those dates, and that he supplied them
    with condoms for use during their dates. On such testimony, a
    rational jury could infer the defendant's knowledge that the
    women were prostitutes. The defendant does not challenge the
    sufficiency of the evidence that the women whose services the
    defendant advertised on Backpage.com were prostitutes; their
    testimony acknowledged that they were prostitutes.
    6 We note as well that, though the indictment referred to
    the defendant's derivation of support from prostitution only "on
    or about the Twelfth day of January in the year of our Lord two
    11
    2.   Admission of Backpage.com advertisement.    The
    defendant's challenge to the admission of the January 12, 2017,
    Backpage.com advertisement is likewise without merit.      As a
    threshold matter, we observe that the defendant did not object
    to admission of the advertisement at trial.    "We generally do
    not consider the admission of evidence that was introduced
    without objection to be error, per se.    See Commonwealth v.
    Stewart, 
    398 Mass. 535
    , 543 (1986) ('hearsay evidence admitted
    without objection may be considered by the jury and may be given
    any probative value it possesses')."     Commonwealth v. Haggett,
    
    79 Mass. App. Ct. 167
    , 174 n.10 (2011).    The purpose of the
    objection is to permit the trial judge an opportunity to ensure
    that inadmissible evidence is removed from the jury's
    consideration.   "If a timely objection is not made, the evidence
    is properly admitted, and the fact finder is entitled to give it
    such probative effect as it deems appropriate."    Mass. G. Evid.
    § 103(a) note, at 6 (2019).   However, even though the claim of
    error is unpreserved, we nonetheless consider whether the
    evidence was admissible and, if not, whether its admission
    thousand and seventeen at Woburn," the evidence of the women's
    past practice of sharing proceeds from paid sexual encounters
    was admitted without limitation, and was relevant to
    establishing the nature of the ongoing business conducted by the
    defendant.
    12
    created a substantial risk of a miscarriage of justice.     See
    
    Haggett, supra
    .
    Contrary to the defendant's claim, admissibility of the
    Backpage.com advertisement did not depend on proof of the
    defendant's authorship of the advertisement.   It was relevant to
    prove the offer of sexual services by two women, without regard
    to the identity of the person who authored, paid for, or posted
    the advertisement.   The advertisement was sufficiently
    authenticated by the testimony of the undercover police officer,
    who identified it as the advertisement to which he responded
    when he arranged his meeting with the women at the Woburn hotel
    for paid sexual services.   See 
    Purdy, 459 Mass. at 447
    & n.5.
    In any event, however, there was ample evidence that the
    defendant authored the advertisement, including the e-mail and
    telephone numbers furnished to Backpage.com incident to placing
    the advertisement (both of which were associated with the
    defendant), and the women's testimony that the defendant posted
    similar advertisements every day.   See 
    id. at 448.
    3.    Specific unanimity.   As the Commonwealth observes, a
    specific unanimity instruction is not required when the
    Commonwealth does not proceed "'on alternate theories' of
    guilt."   Commonwealth v. Arias, 
    78 Mass. App. Ct. 429
    , 432
    (2010), quoting Commonwealth v. Santos, 
    440 Mass. 281
    , 287-288
    (2003).   In the present case, the Commonwealth based its
    13
    prosecution for human trafficking on but one theory of guilt --
    an ongoing course of conduct by the defendant offering sexual
    services of various women, including Internet advertisements to
    solicit customers, driving them to and from arranged sexual
    encounters with customers, and sharing in the proceeds from such
    encounters.    No instruction on specific unanimity was required.7
    4.    Closing argument.   Finally, we see no impropriety in
    the prosecutor's closing argument, and therefore no substantial
    risk of a miscarriage of justice.8    The prosecutor's argument
    that the immunized witnesses were credible was based in the
    evidence and did not constitute improper vouching.    See
    Commonwealth v. Brewer, 
    472 Mass. 307
    , 315 (2015).     See also
    Mass. G. Evid. § 1113(b)(3) (2019).     There also was evidence in
    the record to support the prosecutor's comment that the
    defendant "targeted" the women he trafficked for sexual
    services, based on their homelessness and drug addiction.
    Judgments affirmed.
    7 We note as well that the defendant did not request such an
    instruction.
    8   Again, the defendant raised no objection at trial.
    

Document Info

Docket Number: AC 18-P-172

Citation Numbers: 125 N.E.3d 790, 95 Mass. App. Ct. 463

Judges: Green, Sullivan, Ditkoff

Filed Date: 6/11/2019

Precedential Status: Precedential

Modified Date: 10/19/2024