Summary
The Massachusetts Supreme Judicial Court affirmed Robert Jones's convictions for indecent assault and battery on a child under fourteen and dissemination of matter harmful to minors. The court construed the pre-2011 version of G. L. c. 272, § 28, to implicitly require knowledge that the recipient of harmful material was a minor, thereby rejecting the defendant's facial overbreadth challenge. The court also held that improper prosecutorial comments concerning possible future offenses did not create a substantial risk of a miscarriage of justice in context.
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Practice areas
Questions Presented
- Whether G. L. c. 272, § 28, as it existed during the charged conduct, was facially overbroad under the First Amendment to the United States Constitution and article 16 of the Massachusetts Declaration of Rights because it did not expressly require knowledge that the recipient of harmful matter was a minor.
- Whether the defendant's conviction under § 28 could stand when the jury instructions did not expressly identify knowledge that the recipient was a minor as an element of the offense.
- Whether the prosecutor's closing argument improperly invited the jury to speculate that the defendant would have committed additional sexual offenses against C.J. if C.J. had not moved away, thereby creating a substantial risk of a miscarriage of justice.
Holdings
- The court construed the pre-2011 version of § 28 to include an implied scienter element requiring the defendant to know that the recipient of the harmful matter was a minor. As construed, the statute was not unconstitutionally overbroad.
- The omission of an express instruction on knowledge that the recipient was a minor did not create a substantial risk of a miscarriage of justice because the defendant knew J.B. very well and J.B. was well below eighteen years old.
- The prosecutor's suggestion that the defendant would have committed additional sexual offenses against C.J. if C.J. had not moved away was improper because it invited speculation about uncharged conduct. Nevertheless, in the context of the entire closing argument, the judge's instructions, and the strong evidence of guilt, the remarks did not create a substantial risk of a miscarriage of justice.
Key quotations
“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.” (471 Mass. at 154)
“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 requirement explicit and was therefore not unconstitutionally overbroad.” (471 Mass. at 154)
“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.” (471 Mass. at 156)
Factual background
The defendant engaged in repeated sexualized conduct with two minor nephews. With C.J., who was approximately twelve years old when the conduct began, the defendant repeatedly asked to see his genitals and touched the pubic region above his penis over approximately one year. With J.B., who was approximately nine years old when the conduct began, the defendant showed pornographic material, undressed him, and stroked his penis. The conduct involving C.J. ended after C.J.'s family moved away.
Procedural history
Indictments were returned in the Superior Court Department on April 26, 2012. After a jury trial before Judge Maureen B. Hogan, the defendant was convicted on three indictments; an additional indecent-assault-and-battery charge was nol prossed before trial. The Supreme Judicial Court granted the defendant's application for direct appellate review and affirmed the convictions.