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SJC-11568

               COMMONWEALTH   vs.   JOSEPH D. SULLIVAN.



         Middlesex.     May 6, 2014. - September 9, 2014.

    Present:   Ireland, C.J., Spina, Cordy, Botsford, Gants, &
                            Duffly, JJ.1


Attempt. Kidnapping. Idle and Disorderly Person.          Practice,
     Criminal, Assistance of counsel.



     Indictments found and returned in the Superior Court
Department on November 27, 2007.

     The cases were tried before Hiller B. Zobel, J.; motions
for a new trial and to vacate a conviction, filed on November 2,
2010, were considered by Sandra L. Hamlin, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Kevin J. Curtin, Assistant District Attorney (Nicole L.
Allain, Assistant District Attorney, with him) for the
Commonwealth.
     Dennis A. Shedd for the defendant.
     Timothy St. Lawrence, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.




     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                     2

     SPINA, J.   Following a jury trial in the Superior Court in

December, 2008, the defendant, Joseph D. Sullivan, was convicted

of attempted kidnapping, G. L. c. 274, § 6, and of accosting or

annoying a person of the opposite sex, G. L. c. 272, § 53.2     He

was sentenced to from three to five years in the State prison on

his conviction of attempted kidnapping, and he was sentenced to

three years' probation on his conviction of accosting or

annoying a person of the opposite sex, to commence on and after

the attempted kidnapping sentence.   On appeal, the defendant

argued that (1) the Commonwealth failed to present sufficient

evidence to prove every element of the charged crimes beyond a

reasonable doubt;3 (2) his motion to vacate the attempted

kidnapping conviction was wrongly denied; and (3) his counsel

provided ineffective assistance during the course of the trial.4


     2
       The defendant was found not guilty of assault with intent
to commit a felony (kidnapping), G. L. c. 265, § 29.
     3
       At the close of the Commonwealth's case, the defendant
moved for required findings of not guilty on the three
indictments. The judge denied the motion. The defendant again
moved for required findings of not guilty at the conclusion of
all of the evidence. The judge took no action on the motion.
After the jury's verdicts, the defendant filed a motion for
required findings of not guilty on the two charges of which he
was found guilty. The judge denied the motion.
     4
       After filing his notice of appeal, the defendant filed a
motion for a new trial on grounds of newly discovered evidence
and ineffective assistance of counsel. He also filed a motion
to vacate his conviction of attempted kidnapping on the ground
that it was legally inconsistent with his acquittal on the
charge of assault with intent to commit a felony. A judge in
the Superior Court (who was not the trial judge because he had
                                                                   3

     The Appeals Court affirmed the judgment on the indictment

charging attempted kidnapping, concluding that the Commonwealth

had proved all of the required elements of the offense.

Commonwealth v. Sullivan, 84 Mass. App. Ct. 26, 28-30, 32

(2013).    On the indictment charging accosting or annoying a

person of the opposite sex, the Appeals Court reversed the

judgment, set aside the verdict, and entered judgment for the

defendant.     Id. at 30-32.   It concluded that because the

Commonwealth had not demonstrated that the defendant's conduct

involved "sexually explicit language or acts," the Commonwealth

failed to meet its burden of proving that the defendant's

conduct was "offensive."       Id. at 30-31.   We granted the

Commonwealth's application for further appellate review, limited

to issues pertaining to the defendant's conviction of accosting

or annoying a person of the opposite sex under G. L. c. 272,

§ 53.5    As to those issues, we affirm the judgment of

conviction.6



retired) denied both motions. The Appeals Court consolidated
the defendant's direct appeal with his appeal from the denials
of his postconviction motions. Commonwealth v. Sullivan, 84
Mass. App. Ct. 26, 27 n.2 (2013).
     5
       We acknowledge the amicus brief submitted in support of
the defendant by the Massachusetts Association of Criminal
Defense Lawyers.
     6
       With regard to the other issues raised by the parties
before the Appeals Court, the decision of the Appeals Court is
final and binding.
                                                                         4

    1.      Background.    The facts as they properly could have been

found by the jury are concisely set forth in the decision of the

Appeals Court.    See Commonwealth v. Sullivan, 84 Mass. App. Ct.

at 27-28.    We reiterate the essential details.

    At approximately 9:30 P.M. on September 28, 2007, R.M. was

walking alone on Massachusetts Avenue in Cambridge.       She was

returning to her dormitory on the Massachusetts Institute of

Technology campus after a Tae Kwon Do class.       The operator of a

motor vehicle traveling on Massachusetts Avenue, whom R.M. later

identified from a photographic array as the defendant, swerved

toward her and stopped on the side of the road.       R.M. thought

that he was going to ask for directions, so she took a step

toward the vehicle.       The defendant rolled down the window and

said, "Hey little girl, you look so tired.      Come on over.     Talk

to me.   Let's, you know, let's talk."      R.M. described the pitch

of his voice as "much higher than his normal tone of voice, more

like, well, what you use to bribe someone."       She stepped back

from the vehicle and started walking away because she "didn't

want to have anything to do with that situation."       The defendant

then got out of his vehicle while the engine was still running,

and he walked toward R.M., asking her to come over and speak

with him.    R.M. declined to engage him in conversation and

attempted to move away.       The defendant came closer, causing R.M.

to angle her body to avoid touching him.       Eventually, R.M.
                                                                      5

managed to continue on her way, the defendant returned to his

vehicle, and he drove away.    The encounter, however, did not end

there.

    Apparently changing his mind about heading toward Boston,

the defendant suddenly reversed his direction and followed R.M.

in his vehicle as she turned onto Landsdowne Street, which at

the time was dimly lit and devoid of other pedestrians.     When he

caught up to her, the defendant stopped abruptly and got out of

his vehicle a second time.    With the engine running and the car

door open, he approached so closely that R.M. was aware of an

unpleasant odor emanating from his body.    The defendant sounded

angry, and he demanded that R.M. "get in his car."     Although he

did not touch R.M., the defendant made a gesture like he wanted

to put his arm around her shoulder and guide her toward his car.

At this point, R.M. was "very scared."     She moved away from the

defendant, turning sideways on the sidewalk so she could

"scootch" between the defendant and a wall that was behind her

without touching him.    As R.M. walked past the defendant, he

started to follow her.    R.M. then began reciting to herself the

license plate number of the defendant's vehicle.     At that point,

the defendant "stormed off," got into his car, and left the

scene.   R.M. ran straight to her dormitory feeling "really,

really, really scared," and the police were called.
                                                                   6

    2.    Standard of review.    Because the defendant has

challenged the sufficiency of the evidence, we consider whether,

"after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(emphasis in original).   Commonwealth v. Latimore, 378 Mass.

671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979).   A conviction may rest on circumstantial evidence

alone, and the inferences drawn by a jury from the relevant

evidence "need only be reasonable and possible and need not be

necessary or inescapable."      Commonwealth v. Longo, 402 Mass.

482, 487 (1988), quoting Commonwealth v. Casale, 381 Mass. 167,

173 (1980).   The existence of conflicting evidence does not

mandate a required finding of not guilty, see Commonwealth v.

Merry, 453 Mass. 653, 662 (2009), and we do not weigh supporting

evidence against conflicting evidence when considering whether

the jury could have found each element of the charged crime.

See id. at 660, citing Commonwealth v. Lao, 443 Mass. 770, 779

(2005).

    3.    Sufficiency of the evidence.    General Laws c. 272,

§ 53, as amended through St. 1983, c. 66, § 1, states, in

relevant part:   "[P]ersons who with offensive and disorderly

acts or language accost or annoy persons of the opposite sex

. . . may be punished by imprisonment in a jail or house of
                                                                    7

correction for not more than six months, or by a fine of not

more than two hundred dollars, or by both such fine and

imprisonment."7   Under the statute, "offensive" and "disorderly"

are separate and distinct elements, and the Commonwealth must

prove both beyond a reasonable doubt to satisfy its evidentiary

burden.   See Commonwealth v. Lombard, 321 Mass. 294, 296 (1947).

Moreover, "the Commonwealth has to prove that the defendant's

behavior was offensive and disorderly to a reasonable person."

Commonwealth v. Cahill, 446 Mass. 778, 781 (2006), citing

Commonwealth v. Chou, 433 Mass. 229, 235 (2001).   This is an

objective standard.   Cf. Planned Parenthood League of Mass.,

Inc. v. Blake, 417 Mass. 467, 474-475, cert. denied, 513 U.S.

868 (1994) ("whether a reasonable woman seeking abortion

services would be threatened, intimidated, or coerced by the

defendants' conduct" is objective standard).

     As to the first element of the crime, we have said that

"offensive" acts or language "are those that cause 'displeasure,

anger or resentment; esp., repugnant to the prevailing sense of

what is decent or moral.'"   Commonwealth v. Cahill, 446 Mass. at

781, quoting Black's Law Dictionary 1113 (8th ed. 2004)

(defendant's act of grabbing victim from behind "really tight"


     7
       The 2009 amendments to the statute, see St. 2009, c. 27,
§ 98, are not applicable to this case. In any event, the quoted
language was retained in the amended statute, except that "may
be punished" was changed to "shall be punished" (emphasis
added). G. L. c. 272, § 53 (a).
                                                                    8

around shoulders, at mutual place of business while she was

helping customers, when viewed in context of defendant's other

workplace behavior toward victim, was offensive within meaning

of G. L. c. 272, § 53).   See Commonwealth v. Moran, 80 Mass.

App. Ct. 8, 10 (2011), quoting Commonwealth v. Cahill, supra

(fact finder could conclude that defendant's act of calling out

to victim while passing within arm's reach, grabbing genital

area of trousers, and mimicking masturbation constituted conduct

"repugnant to the prevailing sense of what is decent or moral");

Commonwealth v. Whiting, 58 Mass. App. Ct. 918, 920 (2003)

(evidence sufficient to support conviction of accosting or

annoying person of opposite sex where defendant used sexually

explicit language toward teenage girls, stepped out of vehicle,

and pulled down pants, causing girls to fear that defendant

would hurt them).   Thus, "offensive" acts or language cause a

complainant to feel displeasure, anger, resentment, or the like,

and such acts or language would be considered indecent or

immoral by a reasonable person.

    We interpret the "offensive" acts or language element of

G. L. c. 272, § 53, as requiring proof of sexual conduct or

language, either explicit or implicit.   Explicit behavior is

self-explanatory.   By implicit sexual conduct or language, we

mean that which a reasonable person would construe as having

sexual connotations.   Our construction of the statute flows from
                                                                   9

the fact that the proscribed acts or language must be directed

at a "person[] of the opposite sex," thereby suggesting a sexual

component to the crime.   See Commonwealth v. Rahim, 441 Mass.

273, 274 (2004), citing International Fid. Ins. Co. v. Wilson,

387 Mass. 841, 853 (1983) (recognizing that primary source of

legislative intent is plain language of statute).    This sexual

component defines the character of the wrongdoing.

    Our interpretation is supported by the sexually dangerous

person statute which, in 2004, added the crime of accosting or

annoying persons of the opposite sex to the definition of

"[s]exual offense."   G. L. c. 123A, § 1, as amended through St.

2004, c. 66, § 5.   To conclude that G. L. c. 272, § 53, also

encompasses nonsexual behavior would result in absurd and unfair

consequences.   For example, a defendant convicted of accosting

or annoying a person of the opposite sex based on acts or

language that were not sexual could nonetheless face civil

commitment as a sexually dangerous person due to the

classification of this crime as a "sexual offense" under G. L.

c. 123A, § 1.   See Commonwealth v. Irene, 462 Mass. 600, 610,

cert. denied, 133 S. Ct. 487 (2012), quoting Manning v. Boston

Redev. Auth., 400 Mass. 444, 453 (1987) ("Statutes that relate

to the same subject matter are not to be construed 'in a way

that produces absurd or unreasonable results when a sensible

construction is readily available'").   That the Legislature
                                                                  10

classified the crime of accosting or annoying a person of the

opposite sex as a sexual offense under the sexually dangerous

person statute supports our conclusion that the Legislature

intended the crime of accosting or annoying to require proof of

sexual conduct or language.

     As to the second element of the crime, "disorderly" acts or

language "are those that involve fighting or threatening,

violent or tumultuous behavior, or that create a hazardous or

physically offensive condition for no legitimate purpose of the

actor, whether the resulting harm is suffered in public by the

public or in private by an individual."   Commonwealth v. Chou,

433 Mass. at 233.   See Commonwealth v. Cahill, 446 Mass. at 779,

781-783 (defendant's workplace behavior in forcing unwanted

attention on victim, repeatedly asking for dates, approaching

too closely so their bodies would graze, occasionally touching

her back, and grabbing victim while saying, "I love you," was

physically offensive and, therefore, disorderly within meaning

of G. L. c. 272, § 53).8   Cf. Commonwealth v. LePore, 40 Mass.

App. Ct. 543, 546, 548 (1996) (removing victim's window screen

and engaging in voyeurism, which has sexual connotations,

created physically offensive condition that supported

defendant's conviction of "being a disorderly person").   With


     8
       In Commonwealth v. Cahill, 446 Mass. 778, 783 (2006),
because we concluded that the defendant's act was physically
offensive, we did not consider whether it also was threatening.
                                                                    11

respect to the creation of a "physically offensive" condition

under G. L. c. 272, § 53, "physical contact with a victim's

person is not necessary to render one's actions physically

offensive."    Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 18

(2007), citing Commonwealth v. LePore, supra.    However, a

defendant must create a condition that would cause a reasonable

person to fear imminent physical harm.    See Commonwealth v.

Cahill, supra; Commonwealth v. Whiting, 58 Mass. App. Ct. at

920.    Contrast Commonwealth v. Chou, supra (defendant's conduct

in making or hanging flyers containing sexually explicit

language directed at female student did not create physically

offensive condition); Commonwealth v. Ramirez, supra at 16, 18-

19 (defendant's words and actions did not create physically

offensive condition where defendant did not attempt to go near

complainant, restrict her movement, follow her, or otherwise

create physical offense).

       As to "disorderly" acts or language that are threatening,

we have recognized that "[s]exually explicit language, when

directed at particular individuals in settings in which such

communications are inappropriate and likely to cause severe

distress, may be inherently threatening."    Commonwealth v. Chou,

433 Mass. at 234-235 (defendant's act of posting flyers in high

school containing sexually explicit and aggressive language

directed at female student was threatening and, therefore,
                                                                    12

disorderly within meaning of G. L. c. 272, § 53).     Further, we

have explained that "language properly may be understood and

treated as a threat even in the absence of an explicit statement

of an intention to harm the victim as long as circumstances

support the victim's fearful or apprehensive response."      Id. at

234.    See Commonwealth v. Moran, 80 Mass. App. Ct. at 10

(defendant's spontaneous suggestion of sexual activity delivered

at close quarters but not involving physical contact supported

finding that defendant had engaged in threatening behavior).

When assessing whether acts or language create a physically

offensive condition or are threatening, "context is critical."

Commonwealth v. Ramirez, 69 Mass. App. Ct. at 16.    See Planned

Parenthood of the Columbia/Willamette, Inc. v. American

Coalition of Life Activists, 23 F. Supp. 2d 1182, 1194 (D. Or.

1998) (whether "statement [is] innocent or threatening must be

determined from the context in which it was made").

       We conclude that, after viewing the evidence in the light

most favorable to the Commonwealth, the jury could have found

the elements of accosting or annoying a person of the opposite

sex beyond a reasonable doubt.    See Commonwealth v. Latimore,

378 Mass. at 677.    First, with respect to "offensive" acts or

language, the circumstances surrounding the defendant's

interactions with R.M. were such that a reasonable person would

be upset, as R.M. was, and could legitimately construe the
                                                                  13

defendant's behavior as implicitly suggesting an imminent sexual

assault.   R.M. was a young woman walking back to her dormitory

alone around 9:30 P.M. on a September evening.   When she

initially encountered the defendant, he called her "little girl"

and beckoned her to his car, using a high pitched tone of voice,

so they could "talk."   Not wanting to have anything to do with

the defendant, R.M. started to walk away, but the defendant got

out of his vehicle and pursued R.M., continuing to say, "Hey

little girl, come on over," until he was finally standing within

an arm's length of her.9   When the defendant's entreaties proved

unsuccessful, he returned to his vehicle and drove away, but

then he reversed direction and proceeded to follow R.M. as she

turned onto a dimly lit street devoid of other pedestrians.     The

defendant caught up to R.M., got out of his vehicle but left the

door open and the engine running, approached R.M. so closely

that she was aware of an unpleasant odor emanating from his

body, and angrily demanded that she "get in his car."   Given

everything that transpired, a jury properly could have found

that the defendant's acts or language were "offensive" beyond a

reasonable doubt.

     Next, with respect to "disorderly" acts or language, the

circumstances surrounding the defendant's interactions with R.M.


     9
       On cross-examination, R.M. testified that she did not
remember the defendant asking her if she needed a ride or if she
was hurt.
                                                                   14

were such that a reasonable person would construe the

defendant's behavior as creating a "physically offensive

condition for no legitimate purpose."     Commonwealth v. Chou, 433

Mass. at 233.   Although the defendant did not touch R.M., his

conduct "fairly bristled with menace."    Commonwealth v. Moran,

80 Mass. App. Ct. at 10.   In addition to the acts and language

already described, including the defendant's aggressive

vehicular pursuit of R.M., the defendant physically approached

R.M., who was right in front of a wall, so closely that she was

forced to turn and angle her body away from him in order to

avoid touching him.   While in such close proximity to R.M., the

defendant was angry and demanding, and he gestured as if to

place his arm around her shoulders and steer her toward his car.

When R.M. managed to continue on her way, the defendant followed

her until he heard R.M. reciting the license plate number of his

vehicle, at which point he stormed off and drove away from the

scene.   R.M. then ran straight to her dormitory feeling "really,

really, really scared."    When considering the entirety of the

encounter between the defendant and R.M., a jury properly could

have found that the defendant's acts or language were

"disorderly" beyond a reasonable doubt.

    4.    Ineffective assistance of counsel.   Pertaining to his

conviction of accosting or annoying a person of the opposite sex

under G. L. c. 272, § 53, the defendant also contends that the
                                                                   15

performance of his trial counsel was deficient in two respects.

Both arguments are unpersuasive.

    Counsel is ineffective when his or her performance falls

"measurably below that which might be expected from an

ordinarily fallible lawyer," and the substandard performance

"likely deprived the defendant of an otherwise available,

substantial ground of defence."    Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).    Claims of ineffective assistance of

counsel typically should be raised, as they were here, in a

motion for a new trial, where "an appropriate factual record can

be developed."   Commonwealth v. Diaz, 448 Mass. 286, 289 (2007).

See note 4, supra.   We review the denial of a motion for a new

trial "only to determine whether there has been a significant

error of law or other abuse of discretion. . . .    When, as here,

the motion judge did not preside at trial, . . . we regard

ourselves in as good a position as the motion judge to assess

the trial record."     Commonwealth v. Grace, 397 Mass. 303, 307

(1986).   A defendant seeking a new trial based on a claim of

ineffective assistance of counsel bears the burden of

establishing both prongs of the Saferian test.     See Commonwealth

v. Peloquin, 437 Mass. 204, 210 (2002).

    The defendant first argues that his trial counsel was

ineffective because he failed to file a motion to dismiss the

charge of accosting or annoying a person of the opposite sex on
                                                                    16

the ground that G. L. c. 272, § 53, is unconstitutionally vague.

In the defendant's view, the statute establishes no meaningful,

objective standard for what conduct might be deemed "accosting"

or "annoying."   Instead, he continues, what an individual

considers to be accosting or annoying behavior depends entirely

on that person's subjective sensitivities.    We disagree.

    It is well established that due process requires that

criminal statutes which are not "sufficiently explicit to give

clear warning as to proscribed activities" be declared

unconstitutional.    Commonwealth v. Orlando, 371 Mass. 732, 734

(1977).    See Commonwealth v. Reyes, 464 Mass. 245, 248-249

(2013), and cases cited.   However, "legislative language need

not be afforded 'mathematical precision' in order to pass

constitutional muster."    Id. at 249, quoting Commonwealth v.

Bohmer, 374 Mass. 368, 372 (1978).     A statute is not vague "if

it requires a person to conform his conduct to an imprecise but

comprehensible normative standard so that men of common

intelligence will know its meaning."     Commonwealth v. Orlando,

supra.    A sufficiently definite warning about what conduct has

been made criminal "may be achieved by the common law meaning or

statutory history of particular terms."     Commonwealth v.

Balthazar, 366 Mass. 298, 300 (1974).    See Commonwealth v.

Reyes, supra.
                                                                   17

     As the motion judge correctly determined, G. L. c. 272,

§ 53, is not unconstitutionally vague because in order for

accosting or annoying behavior to be criminal, it must be both

"offensive" and "disorderly," and those terms have been defined

and explained in our jurisprudence.    See, e.g., Commonwealth v.

Cahill, 446 Mass. at 781-783; Commonwealth v. Chou, 433 Mass. at

231-235.    Put slightly differently, an individual who has

engaged in offensive and disorderly acts or language toward a

person of the opposite sex has accosted or annoyed that person.

We conclude that trial counsel was not ineffective for failing

to challenge the constitutionality of G. L. c. 272, § 53, in a

motion to dismiss.

     The defendant also argues that his trial counsel was

ineffective because he failed to object to the judge's

instruction on "accosting."10    The defendant contends that the


     10
          The judge's instruction on "accosting" was as follows:

          "'Accosting' means in essence confronting. The
     Government has to prove beyond a reasonable doubt that this
     confrontation was by conduct on the part of [the defendant]
     that was offensive and disorderly to a reasonable person.
     An offensive act causes real displeasure, anger, or
     resentment, and is repugnant to the prevailing sense of
     what is decent or moral. Not all noxious or disturbing
     remarks are criminal threats. The law does not punish
     boorish behavior per se. It must be an offensive act, as I
     have defined it, or a disorderly act, namely behavior that
     creates a physically offensive condition for no legitimate
     purpose whether the resulting harm, if there is harm, is
     suffered in public by the public or in private by an
     individual. It's not necessary that the offensive acts
     take place in private. On the other hand, the statute, the
                                                                    18

judge limited the definition of a "disorderly act" to the last

prong of the definition set forth in Commonwealth v. Chou, 433

Mass. at 233, namely "behavior that creates a physically

offensive condition for no legitimate purpose."   In so doing,

the defendant continues, the judge essentially equated the

"disorderly" element of the crime with the "offensive" element,

even though they are separate elements and the Commonwealth has

to prove both beyond a reasonable doubt to satisfy its

evidentiary burden.   The defendant asserts that the incomplete

definition of "disorderly" prejudiced his defense.    We disagree.

    Although the judge did not give the entire definition of

"disorderly" acts or language as articulated in Commonwealth v.

Chou, supra, he gave the portion of the definition that was

applicable to the evidence presented at trial.    As we have

discussed, the defendant's interactions with R.M. were such that

a reasonable person would construe the defendant's behavior as

creating a "physically offensive condition for no legitimate

purpose."   Commonwealth v. Chou, supra.   The judge's failure to

    law, criminalizes offenses and disorderly conduct, or
    language as I have defined that, that has a personal and
    private rather than a necessarily public impact.

         "It is up to you to consider all of the circumstances
    with respect to all three of the indictments, all of the
    circumstances when you're contemplating what the
    defendant's intent was, all of the circumstances when you
    are considering, with respect to 'accosting,' whether the
    behavior was, as I have said, oafish and gross, or whether
    on the other hand it was offensive and disorderly to a
    reasonable person."
                                                                 19

itemize all of the alternative theories of the crime which had

no application to this case was not error.   We conclude that the

defendant has not shown that trial counsel's failure to object

to the judge's instruction on "disorderly" acts constituted

ineffective assistance.

    5.   Conclusion.   The judgment of conviction on the

indictment charging accosting or annoying a person of the

opposite sex under G. L. c. 272, § 53, is affirmed.

                                    So ordered.
