SUMMARY: The Massachusetts Appeals Court affirmed the defendant’s convictions for child rape, child pornography, and dissemination of matter harmful to minors when a 23-year old man and a 13-14 year old girl had sexual contact both in person and via cell phone. The defendant raised arguments based on legislative intent, First Amendment, and Improper jury instruction grounds, none of which the court found persuasive. The jury was notably limited by the trial court in the use of the contents of a cell phone placed into evidence.


TITLE: Commonwealth v. Mienkowski, ___Mass. App. Ct.____ (2017), No. 16-P-446, released June 8, 2017

DECISION: Unanimous (3-0) affirming the conviction.



  • The defendant, was convicted two counts of aggravated rape of a child, aged 13-14; one count posing a child in a state of nudity; and dissemination of matter harmful to minors. The defendant was acquitted of two other counts of aggravated rape.
  • The defendant and the victim lived in neighboring apartments in Lowell; the two began “hanging out” when she was 13 and he was 23.
  • The defendant regularly began inserting his finger and tongue into her vagina, which was the basis of his two aggravated rape convictions.
  • The victim then moved away to a different state and turned 14.
  • The defendant and victim continued to communicate by cell phone. In 2011, the victim’s aunt discovered lengthy conversations on the cell phone between the victim and the defendant.
  • The aunt turned the cell phone over to the Lowell police.
  • One text from the defendant included a video of the defendant masturbating, which formed the basis for his conviction for dissemination of matter harmful to minors.
  • The defendant had also asked the victim to text him pictures of her vagina, which she apparently did, which formed the basis of his conviction for posing a child in a state of nudity.
  • The defendant argued a fabrication defense at trial, claiming the incriminating texts had not been sent from someone not the defendant.
  • The cell phone was admitted into evidence, along with screenshots of various texts from the phone. There was no instruction to the jury when it was first admitted. Instead, the Superior Court told the at the jury instruction stage that “You should limit your consideration to what is in evidence. I have ruled to the extent the phone might contain texts from other people no relevant texts have been offered in evidence by either side.”
  • After a later question by the jury during deliberations regarding the cell phone, the Superior Court instructed the jury that they were “limited to the evidence admitted in this case. That evidence includes the screen shots numbered in evidence. Other information on the phone, if any, is not evidence. You may explore the phone to compare the contents to the screen shots.”
  • The defendant appealed, arguing:
    • That the evidence was insufficient to support the conviction of dissemination of material harmful to minors, because, the defendant argued, since the victim could have legally consented to viewing the defendant’s masturbation in person, he could send her a video of such an act, and in any event, the defendant did not know his conduct was wrong. The defendant argued she could have legally consented in person because the legislature has specifically barred prosecution for indecent assault & battery of a child unless the child is under 14.
    • The defendant’s relationship with the victim was protected by the right to free association, and the defendant’s sending of the video was protected by the right to freedom of speech.
    • The jury instructions were erroneous as to what the definition is for material “harmful to minors.”
    • That the Superior Court wrongfully limited the jury’s exploration and use of information on the cell phone to only those texts that had been screenshotted and admitted into evidence


  • The Appeals Court found that the evidence was sufficient to sustain the conviction for dissemination. The video was used by the defendant “currency of his sexual and emotional abuse”, it appealed predominantly to the prurient interest of minors and was contrary to prevailing societal standards. Furthermore, the Appeals Court found that it was impossible to believe that a competent adult would be surprised this conduct was proscribed, and that the defendant’s own denials to the police of sending the video proved he knew such conduct was wrong.
  • The Appeals Court rejected the free association and free speech arguments on the dissemination claim, finding there was a compelling state interest in protecting children from exploitation, and that law was not facially overbroad because it did not create a chilling effect, as the law in question requires sufficient mens rea : the defendant must know both that the child is a minor and that material was harmful .
  • The Appeals Court found that, because the defendant had not contested the claim that the video was harmful to minors, any misstatement by the Superior Court on the definition of material “harmful to minors” did not create a substantial risk of a miscarriage of justice.
  • The Appeals Court finally found that the jury instructions on the use and exploration of the cell phone were not reversible error. The Appeals Court opined that although “it would have been preferable to resolve how much leeway the jury would be given with the cell phone at an earlier point in the proceedings” (i.e. when the cell phone was first admitted, and not at the jury instruction/jury question phase), the fact that the Superior Court limited the jury to evidence in the screenshots was not abuse of discretion, as there was no offer of proof by the defendant of what the other evidence on the cell phone would have proven or might have contained.


  • The Appeals Court did not directly address the defendant’s argument as to how the defendant’s conduct—having the consenting victim view him masturbating—could be criminal if done by video but noncriminal if done in person. The apparent contradiction by the Legislature was not explored.
  • Counsel should properly argue in limine both the admission of cell phones/computers into evidence and the extent to which a jury will be given leeway to explore the contents of cell phones/computers in evidence.
  • When arguing that a jury should have free rein to look through a cell phone, computer, or other device already in evidence, counsel should clearly articulate what evidence the jury might given such freer rein, and how it is relevant. The Appeals Court noted it was difficult to understand the defendant’s argument on this point, as the defendant could not articulate how the restraints placed on the cell phone exploration prejudiced the defendant.

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