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Neutral Court Opinion May 19, 2026

Commonwealth v. Milan

── Commonwealth v. Milan ── Court: Massachusetts Appeals Court Date: May 14, 2026 Category: General NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected] 25-P-720 Appeals Court COMMONWEALTH vs. MICHAEL T. MILAN. No. 25-P-720. Essex. March 16, 2026. – May 14, 2026. Present: Meade, Hodgens, & Allen, JJ. Obscenity, Dissemination of matter harmful to minor. Social Media. Constitutional Law, Indictment. Waiver. Practice, Criminal, Instructions to jury, Waiver, Loss of evidence by prosecution. Evidence, Best and secondary. Indictments found and returned in the Superior Court Department on December 15, 2021. The cases were tried before Brent A. Tingle, J. David M. Osborne for the defendant. Kristen W. Jiang, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury trial, the defendant was convicted of six counts of disseminating harmful material to a minor. On appeal, he claims that defects in his indictments require his convictions to be reversed; the indictments were improperly amended; the judge abused his discretion in not giving a 2 requested jury instruction; and the judge abused his discretion by fashioning an inadequate remedy for the Commonwealth's loss or destruction of potentially exculpatory evidence. We affirm. Background. In 2019, twenty-two year old Ipswich police Officer Kelly Phelan, acting in an undercover capacity, created a social media account in which she posed as a fourteen year old girl, "Crayon Mia." Phelan joined an online social media group and posted a message. While she did not remember the exact wording of the message, it was Phelan's practice to state, "I'm Mia. I'm 14 years old. I'm from Massachusetts. Anyone want to chat?" She did not preserve this initial message or her associated profile photograph. Phelan stated that it was not her "practice" to do so at the time. She feared that if she "burn[ed] the undercover account," which took some time to establish as authentic, she would be unable to use it in future investigations. Phelan admitted that this was an "investigatory mistake" as she had graduated from the police academy only a few months prior to this investigation. Several hours after her initial post, at 1:13 A.M., Phelan received a private message from the thirty-three year old defendant, who used the profile name "Magic Mike." Over the course of two months, the defendant exchanged frequent messages with "Crayon Mia." In these messages, Phelan repeatedly told 3 the defendant that she was fourteen years old, had never had a boyfriend, and that she was sexually inexperienced. Over time, the defendant's messages became increasingly sexual in nature. On five separate occasions, the defendant sent Phelan photographs of his erect penis, and on one occasion he sent a photograph of a naked woman. He also asked Phelan to send intimate photographs of herself and described a variety of sexual acts he wished to do with her. The defendant noted that he did not live far away, suggested that they could meet, and he offered to "be [her] practice." At trial, the defendant did not dispute that he had distributed harmful matter in his online communications with Phelan, but rather argued that he did not believe that "Crayon Mia" was actually a minor. Relative to this contested issue, the Commonwealth provid
CourtListener · May 14, 2026
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