Supreme Judicial Court of Massachusetts, Middlesex
Argued December 1, 2014.
Indictments found and returned in the Superior Court Department on April 26, 2012.
The cases were tried before Maureen B. Hogan, J.
The Supreme Judicial Court granted an application for direct appellate review.
Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.
Anne M. Paruti, Assistant District Attorney ( Jessica L. Langsam, Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[28 N.E.3d 393] Gants, C.J.
A Superior Court jury convicted the defendant on two indictments charging indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B, and one indictment charging dissemination of matter harmful to minors, in
violation of G. L. c. 272, § 28. The defendant presents two claims on appeal. First, he contends that, during the time period alleged in the indictment, § 28 was facially overbroad because it did not explicitly require the Commonwealth to prove that the defendant knew that the person receiving the harmful matter was a minor. Second, he argues that the prosecutor's closing argument created a substantial risk of a miscarriage of justice by suggesting that the defendant would have committed further sexual offenses against one of the child victims had the child not moved away. We conclude that, during the relevant time period, § 28 was not unconstitutionally overbroad because we interpret the statute to have implicitly required knowledge that the recipient was a minor as an element of the crime. We also conclude that the prosecutor's suggestion that the defendant would have committed further sexual offenses against the victim was improper but, in the context of the entire closing argument, did not create a substantial risk of a miscarriage of justice. We therefore affirm the convictions.
The two victims were the defendant's nephews, sons of two different sisters of the defendant. In 2006, one victim, C.J., who was approximately eleven years old, moved with his mother and younger brother to Woburn, which is also where the defendant was living at C.J.'s grandmother's house. A few days during each school week, and nearly every day during the summer, C.J. went to his grandmother's house where he and the defendant spent time together playing video games, using a computer, and playing sports. Because C.J. looked up to the defendant as a father figure, he did not feel uncomfortable when the defendant began asking him about his physical development through puberty. The defendant would routinely ask C.J. about any physical changes to his body and at one point asked if he had started to " play" with his genitals.
[28 N.E.3d 394] In the summer of 2007, when C.J. was approximately twelve years old, the defendant began asking to see his genitals. With no one else in the room, the defendant and C.J. would often be sitting on the bed in the defendant's bedroom, playing video games or watching television, and the defendant would ask to see if any pubescent changes had occurred. C.J. would then stand up or kneel on the bed and pull down his pants and underwear; the defendant would look and touch with his hand the pubic region
immediately above C.J.'s penis, but would not touch the penis itself. The defendant did not show his genitals to C.J. or ask C.J. to perform any sexual act with the defendant.
This pattern of asking to see C.J's genitals and touching his pubic region occurred at least twice a week, and continued for about one year before C.J. began to feel uncomfortable. C.J. first viewed these interactions as appropriate for a father figure to have with a son, but he felt more uncomfortable after he recognized that the defendant was asking to see his genitals nearly every time he visited. These interactions between the defendant and the ...