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SJC-11717

COMMONWEALTH vs. ROBERT JONES.

Middlesex. December 1, 2014. - April 9, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Indecent Assault and Battery. Obscenity, Dissemination of 

matter harmful to minor. Statute, Validity.

Constitutional Law, Freedom of speech and press. Practice, 

Criminal, Argument by prosecutor.

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.

GANTS, C.J. A Superior Court jury convicted the defendant 

on two indictments charging indecent assault and battery on a 
2

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, § 28.1 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.

Background. The two victims were the defendant's nephews, 

sons of two different sisters of the defendant. In 2006, one 

 

1 An additional charge of indecent assault and battery on a 

child under fourteen was nol prossed before trial.
3

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.

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.
4

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.2 These interactions between the 

defendant and the victim stopped after C.J's family moved to 

Tewksbury in the summer of 2008, and shortly thereafter moved to 

New Hampshire.

The second victim, J.B., also lived in Woburn, with his 

mother, stepfather, and sister. In 2007, J.B. was approximately 

nine years old and in fourth grade, and often went after school 

to his grandmother's house, where the defendant lived. The 

defendant and J.B. had a close relationship; they played sports, 

attended sporting events, and went ice-skating together. For 

three years, when J.B. was in the fourth, fifth, and sixth

grades, the defendant went to his house to watch almost every 

Boston Bruins hockey game.

 

2 The defendant also routinely kissed C.J. on the lips when 

they parted. C.J. testified that kissing on the lips was a 

common greeting or farewell gesture in his family, but he 

started to feel uncomfortable when the defendant began kissing 

him multiple times and holding the kiss longer.
5

In the summer before J.B. was starting either fourth or 

fifth grade, the defendant asked him how puberty was going, but 

he did not know what puberty was. The defendant did not raise 

the topic again until the following winter. While the defendant 

and J.B. were alone watching television, the defendant asked, 

"How is puberty hitting you?" The defendant said, "Well, let me 

see then. I'll tell you how puberty is." J.B. then pulled down 

his pants and boxer shorts. From this point forward, about 

every other week, the defendant asked to see J.B.'s penis and 

J.B. showed him. The defendant did not touch J.B.'s penis 

during these interactions.

On one occasion, when J.B. was in fifth grade, sometime 

between 2007 and 2008, the defendant asked him to look at 

something on the defendant's computer. J.B. sat on the 

defendant's lap while the defendant opened a computer program 

used for downloading music and video recordings. As the 

defendant scrolled through a list of pornographic video

recordings, J.B. saw images of nude adult men and women

displaying their genitals and engaging in sexual intercourse. 

The defendant then played a specific video recording, which

showed a group of nude women using icicles as sexual toys. The 

defendant asked J.B. if he had ever searched for materials 

similar to what was shown in the video recording, and J.B. said 
6

"no." As they watched the video recording, the defendant 

unbuttoned J.B.'s pants and pulled down his pants and boxer

shorts. The defendant grabbed J.B.'s penis and stroked it with 

two of his fingers. J.B. did not recall any other instance 

where the defendant touched his genitals or showed him 

pornography.

Discussion. 1. Dissemination of matter harmful to minors. 

At the time of the charged conduct, G. L. c. 272, § 28, as 

appearing in St. 1982, c. 603, § 2, provided, "Whoever 

disseminates to a minor any matter harmful to minors, as defined 

in [G. L. c. 272, § 31], knowing it to be harmful to minors, or 

has in his possession any such matter with the intent to 

disseminate the same to minors" shall be guilty of a crime.3 

Since then, the scope of the statute has twice been amended. In 

2010, the Legislature amended § 31 to add to the definition of 

"matter" "any electronic communication including, but not 

limited to, electronic mail, instant messages, text messages, or 

any other communication created by means of use of the Internet 

 

3 "Harmful to minors" is defined as "matter" that is 

"obscene, or if taken as a whole, . . . (1) describes or 

represents nudity, sexual conduct or sexual excitement, so as to 

appeal predominantly to the prurient interest of minors; (2) is 

patently contrary to prevailing standards of adults in the 

county where the offense was committed as to suitable material 

for such minors; and (3) lacks serious literary, artistic, 

political or scientific value for minors." G. L. c. 272, § 31. 

"Minor" is defined as "a person under eighteen years of age." 

Id.
7

or wireless network." St. 2010, c. 74 § 2.4 In 2011, the 

Legislature amended § 28 explicitly to require that the 

dissemination be purposeful and "to a person [the defendant] 

knows or believes to be a minor." St. 2011, c. 9, § 19.5,6

 

4 This amendment was enacted after we held that the earlier 

definition of "matter" in § 31 did not encompass electronically 

transmitted texts or online conversations. See Commonwealth v. 

Zubiel, 456 Mass. 27, 33 (2010).

5 The amended G. L. c. 272, § 28, now reads, in relevant 

part, "Whoever purposefully disseminates to a person he knows or 

believes to be a minor any matter harmful to minors . . . 

knowing it to be harmful to minors, or has in his possession any 

such matter with the intent to disseminate the same to a person 

he knows or believes to be a minor, shall be punished . . . . A 

person who disseminates an electronic communication . . . shall 

not be found to have violated this section unless he 

specifically intends to direct the communication to a person he 

knows or believes to be a minor" (emphasis added). St. 2011, 

c. 9, § 19.

6 The 2011 amendment of § 28 followed the issuance of a 

preliminary injunction by a judge of the United States District 

Court for the District of Massachusetts, who declared that the 

2010 amendments to § 31, as incorporated within § 28, violated 

the First Amendment to the United States Constitution. American

Booksellers Found. for Free Expression vs. Coakley, U.S. Dist 

Ct., No. 10-11165-RWZ, at 9 (D. Mass. Oct. 26, 2010). The 

preliminary injunction arose from a civil suit filed by several 

individuals and organizations that used the Internet to 

disseminate sex-related information. Id. at 1, 4. The 

plaintiffs argued that § 28 was unconstitutionally overbroad 

because it did not require that a defendant know that the 

intended recipient of the harmful matter was a minor. Id. at 4-

5. The plaintiffs reasoned that those who disseminate "sexually 

frank" information through a generally accessible Web site 

cannot verify the age of every individual who accesses their Web

site; therefore, they cannot prevent minors from viewing 

information that might be harmful to them but appropriate for 

adults, without significantly limiting adults from accessing

this information. Id. at 4, 5 n.3. The Commonwealth agreed 
8

The defendant contends that until § 28 was amended to 

require, as an element of the offense, that the defendant 

disseminated the harmful matter to a person "he knows or 

believes to be a minor," the statute was substantially overbroad 

in violation of the First Amendment to the United States 

Constitution and art. 16 of the Massachusetts Declaration of 

Rights. "The First Amendment doctrine of substantial 

overbreadth . . . is predicated on the danger that an overly 

broad statute, if left in place, may cause persons whose 

expression is constitutionally protected to refrain from 

exercising their rights for fear of criminal sanctions"

(citations omitted). Massachusetts v. Oakes, 491 U.S. 576, 581

(1989) (opinion of O'Connor, J.). Although the defendant does 

not contend that he did not know that the victims were minors, 

he need not do so in order to challenge the constitutionality of 

the statute, because the overbreadth doctrine "is an exception 

to the general rule that a person to whom a statute may be 

constitutionally applied cannot challenge the statute on the 

ground that it may be unconstitutionally applied to others." 

 

that, if § 28 did not require that the sender know that the 

recipient was a minor, the statute would be unconstitutionally 

overbroad. Id. at 5. The judge noted that she could not 

construe the statute to require such knowledge as an element of 

the offense because "in the absence of an explicit state court 

adjudication . . . revision of a state statute by a federal 

court would be inappropriate." Id. at 7.
9

Id. See Bulldog Investors Gen. Partnership v. Secretary of the 

Commonwealth, 460 Mass. 647, 676 (2011), cert. denied, 132 S.

Ct. 2377 (2012) ("The overbreadth doctrine allows an individual 

whose speech may be constitutionally regulated to argue that a 

law is unconstitutional because it infringes on the speech of 

others").

The premise underlying the defendant's overbreadth claim is 

that § 28 prior to amendment did not require as an element of 

the offense that the defendant knew that the recipient of the

harmful matter was a minor. If that premise is correct, the 

statute would be constitutionally suspect because it would chill 

the non-obscene, sex-related speech of those who cannot 

reasonably ensure that the matter they disseminate will be seen 

only by adults. See Reno v. American Civil Liberties Union, 521 

U.S. 844, 875 (1997) (governmental interest "in protecting 

children from harmful materials . . . does not justify an 

unnecessarily broad suppression of speech addressed to adults" 

[citations omitted]). See also Smith v. California, 361 U.S. 

147, 153-154 (1959) (punishing bookseller for possession of 

obscene books without knowledge of obscene content would cause 

self-censorship and severely limit public access to 

constitutionally protected matter, because booksellers are 

limited in amount of reading material with which they can
10

familiarize themselves and they would grow timid in face of 

"absolute criminal liability").

In determining whether to construe the statute prior to 

amendment to require such knowledge, we apply two principles of 

statutory construction. First, "a statute is to be construed 

where fairly possible so as to avoid constitutional questions." 

United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994). 

See Commonwealth v. Disler, 451 Mass. 216, 228 (2008) (it is our 

duty to interpret statutes in manner that avoids constitutional 

difficulties "if reasonable principles of interpretation permit 

it" [citation omitted]). See also O'Brien v. Borowski, 461 

Mass. 415, 422 (2012) ("we have not hesitated to construe 

statutory language narrowly to avoid constitutional 

overbreadth"); Demetropolos v. Commonwealth, 342 Mass. 658, 660 

(1961) ("where a statute may be construed as either 

constitutional or unconstitutional, a construction will be 

adopted which avoids an unconstitutional interpretation").

Second, where First Amendment rights are at issue, we 

presume "that some form of scienter is to be implied in a 

criminal statute even if not expressed." X-Citement Video, 

Inc., 513 U.S. at 69 (construing statute to require knowledge 

that performer in visual depiction of sexually explicit conduct 

was minor). See Commonwealth v. Buckley, 354 Mass. 508, 510
11

(1968) ("Statutes, purporting to create criminal offences which 

may impinge upon the public's access to constitutionally 

protected matter . . . , have been construed to require 

knowledge by the accused of the facts giving rise to 

criminality" [quotation and citation omitted]); Commonwealth v. 

Corey, 351 Mass. 331, 332-333 (1966).

In Corey, 351 Mass. at 334, we applied both of these 

principles when interpreting an earlier version of § 28 to 

require scienter.7 The defendant was an employee in a Boston 

book store who sold a book entitled "Candy" to a seventeen year

old girl who asked for the book by name. Id. at 332. The 

defendant argued that he could not be convicted under § 28 

without evidence that he knew of the allegedly obscene content 

of the book; the Commonwealth conceded that it had offered no 

such evidence. Id. According to the Commonwealth, the absence 

of any language in the statute requiring scienter suggested that 

the Legislature intended to enact a strict liability criminal 

statute, much like it did when it enacted a strict liability 

 

7 The relevant portions of the earlier version of § 28 read, 

"Whoever sells . . . to a person under the age of eighteen years 

a book . . . which is obscene, indecent or impure, or manifestly 

tends to corrupt the morals of youth . . . shall be punished

. . . ." Commonwealth v. Corey, 351 Mass. 331, 331 (1966), 

quoting G. L. c. 272, § 28, as amended through St. 1959, c. 492, 

§ 1.
12

criminal statute prohibiting the sale of liquor to minors. Id. 

at 333.

We acknowledged that the Legislature had the authority in 

enacting criminal statutes to define criminal offenses that had 

no element of scienter, but also recognized that "a different 

situation is presented when the legislation is in an area where 

First Amendment rights are involved." Id. Where First 

Amendment rights are involved, "[t]he [United States] 

Constitution requires proof of scienter to avoid the hazard of 

self-censorship of constitutionally protected material." Id. at 

332-333, quoting Mishkin v. New York, 383 U.S. 502, 511 (1966). 

Thus, if § 28 had no scienter requirement, "booksellers, unable 

to familiarize themselves with all the material on their 

shelves, would tend to restrict sales to minors to the 

relatively few books of which they had some knowledge of the 

contents or character. The result would be an impediment to the 

sale to minors not only of unprotected matter but also of that 

which is constitutionally protected." Corey, supra at 334. We 

held that § 28 "must be read as requiring scienter." Id.

For similar reasons, we now construe § 28 prior to 

amendment to require scienter that the recipient was a minor. 

If scienter as to the recipient's age were not required, online 

booksellers and other Web site administrators who could not 
13

reasonably identify the age of every person who visits their Web

sites would be discouraged from disseminating material that is 

appropriate for adults but harmful to minors. See State v. 

Weidner, 235 Wis. 2d 306, 322 (Wis. 2000) ("By requiring an 

[I]nternet user . . . to prove lack of knowledge regarding the 

age of the person exposed to material deemed harmful to a child, 

the [Wisconsin statute on dissemination of matter harmful to 

minors] effectively chills protected [I]nternet communication to 

adults"). Thus, interpreting the statute to require knowledge 

that the recipient is a minor is necessary to avoid impinging on 

public access to constitutionally protected matter. See Corey, 

351 Mass. at 334.

We interpret § 28 to include an implied element of 

scienter, not only to preserve the constitutionality of the 

statute, but also to reflect what we understand to be the 

legislative intent. First, we note that the statute explicitly 

requires that the defendant have knowledge that the matter 

disseminated is harmful to minors. See G. L. c. 272, § 28, as 

appearing in St. 1982, c. 603, § 2 ("Whoever disseminates to a 

minor any matter harmful to minors . . . knowing it to be 

harmful to minors"). Second, we previously construed § 28 to 

require that the act of dissemination be "purposeful or 

intentional" rather than inadvertent, even though the statute 
14

itself did not explicitly state the level of intent necessary to 

prove dissemination. Commonwealth v. Belcher, 446 Mass. 693, 

696-697 (2006). Finally, because § 28 also made it a crime to 

possess any matter harmful to minors "with the intent to 

disseminate the same to minors," the Legislature likely intended 

that same intent be required to criminalize the dissemination of 

the same matter. See X-Citement Video, Inc., 513 U.S. at 72 

("the presumption in favor of a scienter requirement should 

apply to each of the statutory elements that criminalize 

otherwise innocent conduct").

Where we adopt a limiting construction of a statute to 

avoid substantial overbreadth, as we have done here by requiring 

scienter that the recipient is a minor, "the statute, as 

construed, 'may be applied to conduct occurring prior to the 

construction, provided such application affords fair warning to 

the defendants.'" Oakes, 491 U.S. at 584 (opinion of O'Connor, 

J.), quoting Dombrowski v. Pfister, 380 U.S. 479, 491 n.7 

(1965). See Osborne v. Ohio, 495 U.S. 103, 119 (1990) ("Courts 

routinely construe statutes so as to avoid the statutes' 

potentially overbroad reach, apply the statute in that case, and 

leave the statute in place"). Here, where there can be no issue 

of fair warning, we conclude that § 28 included an implied 

scienter requirement before the 2011 amendment made that 
15

requirement explicit and was therefore not unconstitutionally 

overbroad.8

 

8 On appeal, the Commonwealth also argues that the 

defendant's overbreadth challenge was rendered moot by the 2011 

amendment, even though the amendment was not effective during 

the time period covered by the indictment. The Commonwealth's 

argument rests on the plurality opinion of Justice O'Connor in 

Massachusetts v. Oakes, 491 U.S. 576, 582 (1989), joined by 

three other Justices, which concluded that "overbreadth analysis 

is inappropriate if the statute being challenged has been 

amended or repealed." Justice O'Connor reasoned:

"Overbreadth is a judicially created doctrine designed to 

prevent the chilling of protected expression. An overbroad 

statute is not void ab initio, but rather voidable, subject 

to invalidation notwithstanding the defendant's unprotected 

conduct out of solicitude to the First Amendment rights of 

parties not before the court. Because the special concern 

that animates the overbreadth doctrine is no longer present 

after the amendment or repeal of the challenged statute, we 

need not extend the benefits of the doctrine to a defendant 

whose conduct is not protected."

Id. at 584. Justice Scalia wrote a separate opinion, Part I of 

which was joined by four other Justices, which stated that a 

subsequent legislative amendment of a statute does not 

"eliminate the basis for the overbreadth challenge." Id. at 

585-586. Justice Scalia reasoned:

"The overbreadth doctrine serves to protect 

constitutionally legitimate speech not merely ex post, that 

is, after the offending statute is enacted, but also ex 

ante, that is, when the legislature is contemplating what 

sort of statute to enact. If the promulgation of overbroad 

laws affecting speech was cost free, as Justice O'Connor's 

new doctrine would make it -- that is, if no conviction of 

constitutionally proscribable conduct would be lost, so 

long as the offending statute was narrowed before the final 

appeal -- then legislatures would have significantly 

reduced incentive to stay within constitutional bounds in 

the first place" (emphasis in original).
16

Having construed § 28 prior to amendment to require

knowledge that the recipient of the harmful matter was a minor, 

 

Id. at 586. It was only because Justice Scalia concluded that 

the statute prior to amendment was not impermissibly overbroad

that Justice O'Connor's opinion had the five votes necessary to 

announce the judgment of the court to vacate the judgment below 

and remand for further proceedings. Id. at 585, 588, 590.

Several circuit courts of the United States Court of 

Appeals have agreed that a subsequent amendment of a statute 

renders moot an overbreadth defense. See, e.g., National 

Advertising Co. v. Miami, 402 F.3d 1329, 1332 (11th Cir. 2005),

cert. denied, 546 U.S. 1170 (2006); Stephenson v. Davenport 

Community Sch. Dist., 110 F.3d 1303, 1311-1312 (8th Cir. 1997); 

Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th 

Cir.), cert. denied, 522 U.S. 860 (1997). Yet, as the defendant 

notes, part I of Justice Scalia's opinion was the "only 

proposition to which five Members of the Court [had]

subscribed." Oakes, supra at 591 n.1 (Brennan, J., dissenting). 

The Supreme Court has explained that where "no single rationale 

explaining the result enjoys the assent of five Justices, 'the 

holding of the Court may be viewed as that position taken by 

those Members who concurred in the judgments on the narrowest 

grounds . . . .'" Marks v. United States, 430 U.S. 188, 193 

(1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976). 

However, the Court has also acknowledged that this test "is more 

easily stated than applied." Nichols v. United States, 511 U.S. 

738, 745 (1994). See United States v. Robison, 521 F.3d 1319,

1323-1324 (11th Cir. 2008) ("narrowest grounds" approach does 

not make sense where two opinions "simply set forth different 

criteria" and one opinion does not constitute subset of broader 

opinion). "Since Marks, several members of the Court have 

indicated that whenever a decision is fragmented such that no 

single opinion has the support of five Justices, lower courts 

should examine the plurality, concurring and dissenting opinions 

to extract the principles that a majority has embraced"

(emphasis added). United States v. Johnson, 467 F.3d 56, 65 

(1st Cir. 2006), cert. denied, 552 U.S. 948 (2007). Because we 

construe the statute prior to amendment to be constitutional, we 

need not determine the appropriate method of interpreting 

fragmented Supreme Court decisions in order to decide whether, 

under Oakes, the 2011 amendment of § 28 rendered the defendant's 

overbreadth challenge moot.
17

we must address whether the defendant's conviction under § 28 

can stand where the judge's final instructions to the jury did 

not inform them of this element. See Osborne, 495 U.S. at 118, 

citing Shuttlesworth v. Birmingham, 382 U.S. 87, 91-92 (1965) 

("where a State Supreme Court narrows an unconstitutionally 

overbroad statute, the State must ensure that defendants are 

convicted under the statute as it is subsequently construed and 

not as it was originally written"). Where, as here, the 

defendant did not object to the judge's jury instructions, we 

determine whether the absence of such an instruction created a 

substantial risk of a miscarriage of justice. See Belcher, 446 

Mass. at 696. We conclude that there was no such risk in this 

case, where the defendant was the uncle of the victim, J.B., and 

knew him very well, and where J.B. was well below eighteen years 

of age when the defendant showed him the pornographic material.

2. Closing argument. The defendant also contends that the 

prosecutor's closing argument improperly suggested that the 

defendant would have touched C.J. in the same manner that he 

touched J.B. if C.J. had not moved away. The prosecutor stated:

"Was [the defendant] able to progress any further than 

touching [C.J.]'s pubic area? No. Why not? Because 

[C.J.] left, that's why. Not because he was done learning 

about sex from his uncle, because he physically moved to 

another state. You heard eighth grade he left. He was in 

Tewksbury for a short amount of time and then New 

Hampshire. At that point they saw each other infrequently, 
18

not every day. The access collapsed and his opportunity at 

that point to take it further vanished."

The prosecutor later reemphasized this theory, stating, "Now the 

point that [the defendant] got to with [J.B.] shows you exactly 

what his intent was when he started with [C.J.]. Due to 

circumstances beyond his control, that is a couple of hundred 

miles maybe or a state border, he was unable to reach that point 

with [C.J.]."

The defendant contends that the prosecutor's argument 

regarding the sexual crimes that the defendant would have 

inflicted on C.J. had C.J. not moved was improper because it was 

speculative and played on the jury's fear that, if they found 

the defendant not guilty, he would "take it further" and commit 

more sexual crimes. See Commonwealth v. Ayoub, 77 Mass. App. 

Ct. 563, 569 (2010) (statements that "invited speculation about 

offenses uncommitted and . . . uncharged" are imprudent). 

Because the defendant failed to object to the closing argument, 

we review whether the prosecutor's argument created a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Renderos, 440 Mass. 422, 425 (2003).

The prosecutor's remarks were improper in that they 

suggested that had C.J. not moved away, the defendant might have 

committed additional sexual offenses against him, which invited 

the risk that the jury would divert their focus from the 
19

evaluation of the evidence regarding the defendant's alleged 

crimes, and consider instead what the defendant might have done 

under different circumstances. A prosecutor may make reasonable 

inferences as to what might have actually happened during the 

commission of the alleged crimes, but may not argue what might 

have happened had the victim not moved away.

The challenged remarks, however, followed the defendant's 

closing argument, and must be evaluated in that context. See 

Renderos, 440 Mass. at 425 (prosecutor's remarks evaluated in 

context of entire closing argument, judge's instructions of law, 

and evidence at trial); Commonwealth v. Grandison, 433 Mass. 

135, 143 (2001) (prosecutor may fairly respond to defendant's 

closing argument). In his closing argument, the defendant's 

trial counsel contended that the defendant was "trying to 

introduce these young men to this whole idea of sexual 

development, maturity, puberty and everything that goes along 

with sex education," albeit in a clumsy manner, and therefore 

"[n]one of these events were [sic] indecent." The prosecutor 

countered that the defendant's touching of the victims was not 

for the purpose of their sex education, but for his own sexual 

gratification and that the defendant took advantage of the trust 

he had built with the victims. In this context, a reasonable 

jury were more likely to have understood the prosecutor's 
20

statements that suggested what the defendant might have done,

had C.J. not moved away, as commentary on the intent of the 

defendant's earlier touching of C.J., rather than on the 

defendant's future sexual dangerousness. The prosecutor's 

statement, "[T]he point that [the defendant] got to with [J.B.] 

shows you exactly what his intent was when he started with 

[C.J.]," directed the jury to consider the defendant's conduct 

with J.B. in evaluating the defendant's intent in touching C.J.

Having considered the prosecutor's improper statements in the 

context of the closing arguments and recognizing the strength of 

the evidence against the defendant, we conclude that there was 

no substantial risk of a miscarriage of justice.

Conclusion. Because G. L. c. 272, § 28, was constitutional 

at the time of the defendant's charged conduct, and the 

prosecutor's closing argument did not create a substantial risk 

of a miscarriage of justice, we affirm the defendant's 

convictions.

So ordered.