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SJC-11862

            COMMONWEALTH   vs.   RICHARD J. ST. LOUIS.



     Berkshire.     September 8, 2015. - December 23, 2015.

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


Indecent Assault and Battery on a Person with an Intellectual
     Disability. Indecent Assault and Battery on a Retarded
     Person. Indecent Exposure. Intellectually Disabled
     Person. Mentally Retarded Person. Constitutional Law,
     Vagueness of statute, Assistance of counsel, Ex post facto
     law. Due Process of Law, Vagueness of statute. Practice,
     Criminal, Instructions to jury, Required finding, New
     trial, Assistance of counsel. Consent.



     Indictments found and returned in the Superior Court
Department on October 24, 2011.

     The cases were tried before John A. Agostini, J., and a
motion for a new trial was considered by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Michael J. Hickson for the defendant.
     John P. Bossé, Special Assistant District Attorney, for the
Commonwealth.
                                                                    2


     SPINA, J.    In this case, we are asked to examine whether

the term "intellectual disability" in G. L. c. 265, § 13F

(indecent assault and battery on a person with an intellectual

disability), renders the statute unconstitutionally vague.     On

the effective date of November 2, 2010, the Legislature amended

the statute substituting the term "mentally retarded person"

with "person with an intellectual disability" as well as the

words "be mentally retarded" with "have an intellectual

disability."     St. 2010, c. 239, §§ 71-72.   These amendments were

part of a broad legislative scheme that purged the term

"mentally retarded" from the General Laws.     St. 2010, c. 239

("An Act eliminating the word 'retardation' from the General

Laws").   As a result, G. L. c. 265, § 13F, now states: "Whoever

commits an indecent assault and battery on a person with an

intellectual disability knowing such person to have an

intellectual disability shall . . . be punished . . . ."      The

term "intellectual disability" is not defined by the statute.

     The defendant was convicted on four indictments alleging

indecent assault and battery on a person with an intellectual

disability,1 one indictment alleging indecent exposure, and one



     1
       One indictment involved the touching of the defendant's
penis by the victim. A second involved the defendant touching
the victim's vagina with his hands. A third involved the
defendant touching the victim's breast with his hands. The
fourth involved the defendant touching the victim's breast with
                                                                   3


indictment alleging accosting or annoying a person of the

opposite sex.   The crimes were alleged to have occurred between

on or about January 1, 2008, which was before the effective date

of the statutory amendments, and on or about September 16, 2011.

     At the close of the Commonwealth's evidence, the defendant

moved for required findings of not guilty on all charges.     A

judge in the Superior Court entered a required finding of not

guilty on an indictment alleging intimidation of a witness but

denied the motion as to the remaining charges.

     At the close of all the evidence, the defendant renewed his

motion for required findings of not guilty on the remaining

charges, which was denied.   Appellate proceedings were stayed to

allow the defendant to file postconviction motions.   The

defendant filed postconviction motions for a new trial under

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),2

and for a required finding of not guilty under Mass. R. Crim. P.

25 (b) (2), as amended, 420 Mass. 1502 (1995),3 both of which



his mouth. The jury found him not guilty on a fifth indictment
involving evidence that he put his mouth on the victim's vagina.
     2
       In his motion for a new trial, the defendant alleged that
counsel was ineffective for failing to file a motion to dismiss
the indictments charging indecent assault on a person with an
intellectual disability on grounds that the statute was
unconstitutionally vague, and that he had been charged under an
ex post facto law.
     3
       In his postconviction motion for required findings of not
guilty, the defendant alleged that the evidence was insufficient
                                                                        4


were denied by the trial judge.    The defendant appealed from the

denial of his postconviction motions.     The Appeals Court

consolidated the two appeals.    We transferred the case to this

court on our own motion.

    On appeal, the defendant asserts (1) that the term

"intellectual disability" renders G. L. c. 265, § 13F,

unconstitutionally vague; (2) that he was convicted under an ex

post facto law; (3) that the judge erred by denying certain of

his motions for a required finding of not guilty; and (4) that

the judge erred by denying his motion for a new trial.        For the

following reasons, we conclude that G. L. c. 265, § 13F, is

constitutional, and we affirm the judge's rulings.

    1.     Background.   The jury could have found the following

facts.    In 2013, at the time of trial, Amy4 was a twenty-four

year old woman.    At the time of the incidents, Amy lived in a

farmhouse with a wraparound porch in Hancock with her mother and

her maternal grandfather.    She was adopted at birth, and at the

age of eight months she was diagnosed with "slow learning" and

"special needs."    Amy reads at a third or fourth grade level and

has a verbal intelligence quotient (IQ) of forty-seven.       In



to warrant convictions on the indictments charging him with
indecent assault and battery on a person with an intellectual
disability, and that he had been charged under an ex post facto
law.
    4
         A pseudonym.
                                                                       5


2008, after Amy reached age eighteen, her mother and grandfather

were appointed legal guardians of her.       According to the

permanent decree of guardianship admitted in evidence, a judge

in the Probate and Family Court found that Amy is "mentally

retarded" and that failure to appoint a guardian would create

risk to her health and welfare.      The medical certificate

supporting the permanent decree of guardianship details Amy's

disability as being mental retardation and states that she lacks

the ability to make decisions without adult supervision.5

       At the time of trial, the defendant was seventy-two years

old.       He is a retired boat builder, which he had done for forty-

six years, but he continued to work part time doing fiberglass

work.      His hobbies included hunting and fishing.    He and a

friend used to hunt in western Massachusetts.       The friend

introduced him to Amy's great grandmother.       In the early 1980s,

he began to hunt on the property where Amy and her family live.

The defendant and Amy's grandfather forged a friendship and grew

close over the years.       The defendant would visit the family two

to three times a year and hunt on the property.        He typically

would stay for one or two weeks at a time in his camper, which




       5
       The medical certificate also reports that Amy's most
recent evaluations at the time illustrated her problem-solving
ability to be at a four year old level.
                                                                    6


he parked behind the farmhouse.     The defendant came to know Amy,

and he described her as behaving "like a child more or less."

     On September 11, 2011, Amy and the defendant were sitting

side by side, alone on the porch.     The boy friend of Amy's

mother was folding laundry in front of a window overlooking the

porch.    While sitting next to the defendant, Amy dropped her

hand to his leg and slowly moved her hand up toward the

defendant's crotch area.     Amy began to "rub" and "pet" the

defendant's penis over his pants.     Amy testified that the

defendant did not ask her to do this but that it was "his idea."

Amy's mother's boy friend watched this occur from the window,

and after watching for a few moments, he went to the staircase

and called up to Amy's mother to come downstairs.     She and her

boy friend watched Amy and the defendant from the downstairs

window.    Amy's mother saw Amy's hand on the defendant's leg,

next to his penis.    Upon seeing this, Amy's mother frantically

knocked on the window and told Amy to come inside.

     Amy went inside, and her mother took her upstairs to talk

to her.    Once they were upstairs, Amy began to tell her mother

about various incidents when the defendant touched her

inappropriately.     Amy's mother made written notes of Amy's

account of the incidents.6    These incidents occurred over a


     6
         Amy's mother testified as a first complaint witness.
                                                                       7


period of three years, always outside the defendant's camper.7

Amy would walk with the defendant back to his camper after

dinner.    According to Amy's testimony, the defendant touched her

breasts, her vagina, and kissed her multiple times on the mouth,

breasts, and vagina.     Amy testified that these events made her

feel uncomfortable.    She testified to one particular incident

where the defendant put his hand on the back of her head and

forced her head down toward his penis because he wanted her to

perform oral sex.     She refused and told him she did not want to

do that.   The defendant told her to keep it a secret because, if

she did not, he could get in trouble.      Amy testified that the

defendant's penis was exposed but that she could not see it

because it was dark out and she could not describe it.

     After the September 11 incident, Amy was not allowed to go

outside the house while the defendant was still on the property,

and the defendant was not allowed in the home.      The defendant

stayed for about another week on the property.      A few days after

Amy made these disclosures, her mother reported the incidents to

the police, who then began an investigation.

     2.    Indecent assault and battery on person with

intellectual disability.     a.   Constitutionality of G. L. c. 265,

     7
       Although Amy testified that these various incidents of
inappropriate touching occurred over three years, the record
does not state specific dates. Three years before the
September 11, 2011, porch incident would be 2008, before the
effective date of the statutory amendments.
                                                                     8


§ 13F.    The defendant argues that the term "intellectual

disability" renders § 13F unconstitutionally vague on its face

under the State and Federal Constitutions because the term is a

"neologism" that does not have a usual and accepted meaning.       We

disagree.    The defendant did not raise the issue in a pretrial

motion to dismiss, the required procedure for a facial challenge

based on vagueness.8    See Commonwealth v. Moses, 436 Mass. 598,

605 n.4 (2002); Commonwealth v. Chou, 433 Mass. 229, 237 (2001).

We review under the standard of a substantial risk of a

miscarriage of justice.

     The void-for-vagueness doctrine is well established in our

jurisprudence.    "It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions are not

clearly defined."     Grayned v. Rockford, 408 U.S. 104, 108

(1972).     A criminal statute must define the offense "in terms

that are sufficiently clear to permit a person of average

intelligence to comprehend what conduct is prohibited."

Commonwealth v. Spano, 414 Mass. 178, 180 (1993).     See Kolender

v. Lawson, 461 U.S. 352, 357 (1983); Commonwealth v. Bohmer, 374

     8
       An as-applied challenge based on vagueness frequently
depends on the evidence at trial, and may be raised in a motion
for a required finding of not guilty. See Commonwealth v.
Kwiatkowski, 418 Mass. 543, 545 (1994). If a defendant fails to
raise an as-applied challenge in a motion for a required finding
of not guilty, the issue will be considered under the standard
of a substantial risk of a miscarriage of justice. See
Commonwealth v. Chou, 433 Mass. 229, 238 (2001).
                                                                       9


Mass. 368, 371-372 (1978).     "When a statute does not define its

words we give them their usual and accepted meanings, as long as

these meanings are consistent with the statutory purpose. . . .

We derive the words' usual and accepted meanings from sources

presumably known to the statute's enactors, such as their use in

other legal contexts and dictionary definitions" (citations

omitted).   Commonwealth v. Bell, 442 Mass. 118, 124 (2004).       A

criminal statute must not be so vague that it opens itself up to

arbitrary enforcement and prosecution.     See Grayned, supra at

108-109; Commonwealth v. Freiberg, 405 Mass. 282, 289, cert.

denied, 493 U.S. 940 (1989).     "[A] vague statute offends by its

lack of reasonably clear guidelines for law enforcement and its

consequent encouragement of arbitrary and erratic arrests and

prosecutions."   Commonwealth v. Sefranka, 382 Mass. 108, 110

(1980).

    However, "[i]t is not infrequent that prescribed conduct is

incapable of precise legal definition."     Jaquith v.

Commonwealth, 331 Mass. 439, 442 (1954).     "[L]egislative

language need not be afforded 'mathematical precision' in order

to pass constitutional muster."     Commonwealth v. Reyes, 464

Mass. 245, 249 (2013), quoting Bohmer, 374 Mass. at 372.      A

statute will be deemed constitutional if it "conveys [a]

sufficiently definite warning as to the proscribed conduct when

measured by common understanding and practices."     Commonwealth
                                                                  10


v. Adams, 389 Mass. 265, 270 (1983), quoting Commonwealth v.

Jarrett, 359 Mass. 491, 496-497 (1971).     See Reyes, supra.

     In this case, we conclude that the term "intellectual

disability" is sufficiently clear and definite and is therefore

not unconstitutionally vague.    The legislative history of § 13F,

as amended through St. 2010, c. 239, §§ 71-72, makes it clear

that the Legislature's intent was merely to change the

nomenclature and not the substance of the statute.

     Section § 13F was amended in 2010 in conjunction with

numerous other laws by an act entitled, "An Act eliminating the

word 'retardation' from the General Laws."    St. 2010, c. 239.

The only revision made to § 13F was a substitution of the term

"person with an intellectual disability" for the term "mentally

retarded person" and the words "have an intellectual disability"

for "be mentally retarded."     No substantive changes to § 13F

were made by these amendments.    This change in language was part

of a larger legislative scheme to eradicate the pejorative term

"mentally retarded" from the General Laws.9    St. 2010, c. 239.10


     9
       In addition to purging the General Laws of the term
"mentally retarded," many other similar modifications took place
in the quest for more respectful language. Prior to 2009, the
Department of Developmental Services, the agency charged with
providing services to individuals with intellectual
disabilities, was known as the Department of Mental Retardation.
See G. L. c. 19B, § 1, as amended through St. 2008, c. 182, § 9.
Correspondingly, the department amended its regulations by
substituting "intellectual disability" for the term "mental
retardation," but notably did not alter the substantive
                                                                11


Indeed, Massachusetts was part of a nationwide trend by which

the United States Congress and many other State Legislatures

enacted similar legislation in order to promote respect and

dignity to those with intellectual disabilities.11   The



definition. Compare 115 Code Mass. Regs. § 2.01 (2009)
(defining "mental retardation" as "significantly sub-average
intellectual functioning existing concurrently and related to
significant limitations in adaptive functioning. Mental
retardation manifests before age [eighteen]"), with 115 Code
Mass. Regs. § 2.01 (2012) (defining "intellectual disability" as
"significantly sub-average intellectual functioning existing
concurrently with and related to significant limitations in
adaptive functioning. Intellectual Disability originates before
age [eighteen]").

     Additionally, Governor Deval Patrick issued an executive
order to rename the Governor's Commission on Mental Retardation
as the Governor's Commission on Intellectual Disability.
Executive Order No. 521 (Mar. 31, 2010). In support of renaming
the commission, the executive order referenced the widespread
movement in using "intellectual disability," stating,
"[Whereas], there is a strong trend, nationally and
internationally, to use the term 'intellectual disability'
rather than mental retardation . . . ." Id.
     10
       The Legislature did not succeed completely in eliminating
the term "mentally retarded" from the General Laws. The last
sentence of the second paragraph of G. L. c. 265, § 13F, was not
amended, and states: "This section shall not apply to the
commission of an assault and battery by a mentally retarded
person upon another mentally retarded person." We perceive this
to be a mere oversight that does not affect our analysis.
     11
       In 2010, President Barack Obama signed legislation
entitled "Rosa's Law" that amended various Federal education,
labor, and health laws by removing the words "mental
retardation" and replacing them with the words "intellectual
disabilities." Pub. L. 111-256, 111th Cong., 124 Stat. 2643
(2010). In 2012, California enacted a law that eliminated the
words "mentally retarded" in State laws, regulations, and
publications and replaced them with the words "intellectual
disability." 2012 Cal. St. c. 457. In 2013, the Social
                                                                  12


Legislature did not intend to change the substance of the

statute with the substitution of the words "intellectual

disability" but only intended the statute to contain more

respectful and acceptable terms.

    The term "intellectual disability" is not defined by § 13F.

In such cases we apply the familiar rule of statutory

construction that guides us to give the words "their usual and

accepted meanings, as long as these meanings are consistent with

the statutory purpose."   Bell, 442 Mass. at 124, quoting

Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977).    As

has been discussed, "intellectual disability" has become the

accepted term for someone who would have been described as

mentally retarded prior to the various statutory and regulatory

amendments.   The definition of "mentally retarded" in 115 Code



Security Administration promulgated a final rule that eliminated
the term "mental retardation" and replaced it with "intellectual
disability." 78 Fed. Reg. 46,499 (2013). The agency explained,
"This change reflects the widespread adoption of the term
'intellectual disability' by Congress, government agencies, and
various public and private organizations." Id. The United
States Supreme Court has discontinued use of the term "mental
retardation" and now uses the term "intellectual disability."
Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). Justice Kennedy,
in an opinion analyzing a Florida statute regarding the death
penalty and intellectually disabled defendants, stated by way of
introduction: "Previous opinions of this Court have employed
the term 'mental retardation.' This opinion uses the term
'intellectual disability' to describe the identical phenomenon."
Id. He went on to explain that the term "intellectual
disability" is also used in the latest edition of the Diagnostic
and Statistical Manual of Mental Disorders. Id.
                                                                    13


Mass. Regs. § 2.01 prior to the 2010 statutory amendments was

identical to the definition given to the term "intellectual

disability" in the regulations after the statutory amendments.

See note 9, supra.

     Prior to the 2010 amendments, Massachusetts courts had

referenced the definition of "mental retardation" found in the

regulations of the Department of Developmental Services

(department) to define "mental retardation" under § 13F and

other statutes.   See e.g., Commowealth v. Fuller, 66 Mass. App.

Ct. 84, 96 (2006); Commonwealth v. Aitahmedlamara, 63 Mass. App.

Ct. 76, 76-77 (2005) (discussing "usual and accepted meaning" of

"mental retardation" under § 13F).    "Administrative regulations

have been frequently used as guides to determine the meaning of

statutory provisions."    1A N.J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction § 31.6, at 696 (7th ed.

2009).    In Fuller, supra, the Appeals Court held that an

instruction given to a jury regarding the definition of "mental

retardation" "was consistent with the usual and accepted

understanding of the meaning of the words 'mentally retarded' as

well as the definition promulgated by the [Department of Mental

Retardation] at 115 Code Mass. Regs. § 2.01 (1994)."12    Fuller,


     12
       In Executive Order No. 521, changing the name of the
Governor's Commission on Mental Retardation, Governor Deval
Patrick stated, "[Whereas], the Department of Developmental
Services changed its regulations to make the term 'intellectual
                                                                   14


supra.    The trial judge in Fuller had instructed the jury that

"[a] mentally retarded person is a person who, as a result of

inadequately developed or impaired intelligence, is

substantially limited in his or her ability to learn or to adapt

to the means necessary to function effectively in the

community."   Id. at 94.   As noted above in note 9, the

regulations since have been amended and now include the more

accepted term "intellectual disability."    Those regulations

define "intellectual disability" in identical terms as the term

"mental retardation" previously had been defined.     Where "mental

retardation"13 is itself a commonly understood term, see id. at

96, and where it is synonymous with "intellectual disability,"

the latter also is a commonly understood term.

     In addition to the regulatory definition, the Diagnostic

and Statistical Manual of Mental Disorders defines "intellectual

disability" as "a disorder with onset during the developmental

period that includes both intellectual and adaptive functioning




disability' synonymous with mental retardation . . . ."
Executive Order No. 521 (Mar. 31, 2010).
     13
       The 2012 regulations also noted that the substituted
definition is consistent with the standard used in the eleventh
edition of American Association of Intellectual Disabilities:
Definition, Classification, and Systems of Supports (2010). 115
Code Mass. Regs. § 2.01 (2012).
                                                                     15


deficits in conceptual, social, and practical domains."14

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 33 (5th ed. 2013).     These definitions

maintain the core concept that an intellectual disability

consists of intellectual limitations and affects adaptive

behaviors.     In this case, no one questioned whether Amy in fact

had an intellectual disability.     The defendant himself

acknowledged on direct examination that he knew Amy had

"intellectual disabilities" and the record demonstrates that it

was generally understood that Amy had an intellectual

disability.    We conclude that the term "intellectual disability"

has an accepted and well understood meaning, and applying that

meaning to the defendant does not render the statute

unconstitutionally vague.

     The defendant also argues the judge's instructions defined

the term "intellectual disability" in a manner that was

erroneous.15    The judge's instruction incorporated the definition


     14
       The American Association on Intellectual and
Developmental Disabilities defines "intellectual disability" as
"a disability characterized by significant limitations both in
intellectual functioning . . . and in adaptive behavior." See
American Association on Intellectual and Development
Disabilities, Frequently Asked Questions on Intellectual
Disability, http://aaidd.org/intellectual-disability/definition/
faqs-on-intellectual-disability#.VfxrPVKFNaR [http://perma.cc/
G6CS-5V5G].
     15
       The defendant does not allege error for the remaining
portions of the jury instructions. The trial judge instructed
                                                                   16


of "person with disability" from G. L. c. 265, § 13K, which

proscribes assault and battery on an elderly or disabled person.

The defendant contends that this definition did not cure the

problem of vagueness in § 13F, and it permitted the jury to

convict him under § 13K.   The defendant did not object to the

trial judge's instructions.   We review the instruction under the

standard of a substantial risk of a miscarriage of justice.      See

Commonwealth v. Ford, 424 Mass. 709, 712 (1997); Commonwealth v.

Mitchell, 67 Mass. App. Ct. 556, 565 (2006).   We look to the

jury instructions as a whole in order to determine if there was

a substantial risk of a miscarriage of justice.   See

Commonwealth v. Shea, 467 Mass. 788, 796 (2014); Commonwealth v.

Whitman, 430 Mass. 746, 755 (2000).   We agree that the trial

judge's jury instructions regarding the definition of

"intellectual disability" were erroneous.   However, the error

did not create a substantial risk of a miscarriage of justice.

    General Laws c. 265, § 13K, defines "person with

disability" as "a person with a permanent or long-term physical

or mental impairment that prevents or restricts the individual's

ability to provide for his or her own care or protection."      The

definition of "person with disability" in § 13K encompasses a



the jury that "intellectual disability is a permanent or long-
term mental impairment that prevents or restricts the
individual's ability to provide for her own care or protection."
                                                                   17


greater variety of disabilities than does § 13F, including

Alzheimer's disease and a number of other disabilities.

However, it also includes "intellectual disability" under § 13F.

    The erroneous jury instruction did not create a substantial

risk of a miscarriage of justice because the disability that was

the focus of the evidence at trial was an intellectual

disability.   Amy's condition met the definition from § 13K that

the judge used to instruct the jury, and it is highly unlikely

that the jury would have based its verdict on any other

disability, such as Alzheimer's disease.    We conclude that the

defendant has failed to show the existence of a substantial risk

of a miscarriage of justice.    In future trials under § 13F, it

would be appropriate to instruct a jury with the definition of

"intellectual disability" as used in the regulations of the

department.   That definition is consistent with other

organizations' definition of "intellectual disability" and is

well understood.

    b.     Motion for required findings of not guilty.   i.

Consent.   The defendant argues that his trial and posttrial

motions for required findings of not guilty should have been

granted as to the indictment under G. L. c. 265, § 13F,

concerning the incident on September 11, 2011, because the

Commonwealth presented insufficient evidence of lack of consent.

The Commonwealth argues that the judge correctly denied the
                                                                   18


defendant's motions because there was sufficient evidence that

the defendant intended for Amy to touch his penis and that the

combination of her intellectual disability and the significant

age difference between them is sufficient to prove Amy did not

consent to the touching on that date.   When deciding a motion

for a required finding of not guilty, we view the evidence in

the light most favorable to the Commonwealth.   Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979).   We must determine

whether "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting

Latimore, supra at 677.

     The elements of an indecent assault and battery on a person

with an intellectual disability include lack of consent, and the

Commonwealth bears the burden of production and persuasion on

the issue.   See Commonwealth v. Portonova, 69 Mass. App. Ct.

905, 906 (2007).   The element of lack of consent in a

prosecution for indecent assault and battery is the same as in a

prosecution for rape.16   See Commonwealth v. LeBlanc, 456 Mass.


     16
       Capacity to consent may be an issue in such cases. "In
order to give consent a person must . . . have the capacity to
do so." Commonwealth v. Burke, 390 Mass. 480, 484 (1983).
Capacity to consent can be affected by a number of different
factors, including intoxication, consumption of drugs, sleep,
unconsciousness, head injury, and intellectual disability. See
Commonwealth v. Blache, 450 Mass. 583, 590 n.10 (2008). The
judge did not instruct the jury on lack of capacity to consent,
                                                                    19


135, 138 (2010); Commonwealth v. Simcock, 31 Mass. App. Ct. 184,

188 (1991).    In this case, the Commonwealth presented sufficient

evidence from which the jury could find that, in the totality of

the circumstances, including Amy's intellectual disability, Amy

did not consent.

     The evidence of Amy's intellectual disability was

prevalent.    Amy's mother testified that she was diagnosed with

"slow learning, special needs" when she was eight months old.

She also revealed that Amy was missing the left half of her

cerebellum.   Amy read at a third or fourth grade level and her

mother described her age range relative to over-all mental

capacity as spanning from that of a young age to that of a

teenager in regards to her moods.   State police Trooper Dale

Gero, the officer who investigated the incidents, testified that

Amy appeared to act like a five to seven year old child.17    The

mother's boy friend described Amy as "basically" a child and as

"a woman with a child's mind."    Amy had an IQ of forty-seven and

lacked the mental capabilities to complete a high school




thereby effectively removing the possibility of a verdict on
that evidence alone. He only instructed on lack of consent, but
told the jury that they could consider Amy's state of mind on
this element of the Commonwealth's proof.
     17
       State police Trooper Dale Gero based his opinion on his
observation of Amy and his experience of having a five year old
daughter of his own.
                                                                    20


program.18    Her mother testified that Amy's mental disability is

classified as mental retardation.    Amy was not allowed to go

shopping by herself.    Additionally, the jury were able to

observe Amy testify and assess the scope of her intellectual

disability.    See Fuller, 66 Mass. App. Ct. at 90;

Aitahmedlamara, 63 Mass. App. Ct. at 77-78 ("the victim

testified extensively at trial, and the jury were able from

their observations of her to assess both the question of her

mental retardation and the likelihood that the defendant was

aware of it").    While testifying, Amy required a number of

breaks.

     There was evidence from which the jury could have found

that Amy perceived that the defendant had authority over her

because of his friendship with her family, "the considerable age

disparity between [them,] . . . and an obvious disparity in

experience and sophistication."     Commonwealth v. Shore, 65 Mass.

App. Ct. 430, 432 (2006), quoting Commonwealth v. Castillo, 55

Mass. App. Ct. 563, 567 (2002).    There was evidence of prior

unwanted sexual touching.    With respect to the incidents before

September 11, 2011, Amy testified that she felt uncomfortable,

and that the defendant told her to keep these incidents secret

because he could get in trouble.    The jury reasonably could have

     18
       Amy obtained a certificate of attendance in 2010 when she
was twenty-two years old.
                                                                     21


found that, in the totality of the circumstances, including

Amy's intellectual disability, she did not consent to the sexual

touching.

    The fact that the defendant did not do the touching on this

occasion did not preclude the jury from convicting him of

indecent assault and battery on a person with an intellectual

disability.   See Portonova, 69 Mass. App. Ct. at 905-906

(reiterating our case law does not require defendant to do

touching); Commonwealth v. Davidson, 68 Mass. App. Ct. 72, 73,

75-76 (2007) (defendant convicted of indecent assault and

battery on child under age of fourteen, G. L. c. 265, § 13B,

when victim touched his penis and rubbed his "private" with her

nose).    "The gravity of the conduct rises to the level which

the[] statute[] [was] designed to prohibit."     Davidson, supra at

75-76, quoting Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 362

(1992).

    ii.     Ex post facto law.   The defendant further argues that

his motions for required findings of not guilty as to the four

remaining indictments charging him with violations of § 13F

should have been allowed because the Commonwealth presented

insufficient evidence that these acts occurred after the 2010

amendments to § 13F.    He further contends that as a result, his

convictions violate the prohibitions against ex post facto laws

under art. I, § 10, of the United States Constitution and art.
                                                                    22


24 of the Massachusetts Declaration of Rights.     Specifically, he

asserts that as a matter of law he could not have been convicted

under § 13F, based on conduct that occurred prior to November 2,

2010, when the statutory amendments took effect.     As discussed

above, the substitution of the term "intellectual disability"

for "mental retardation" did not change the substance of the

statute.    The two terms are synonymous.   Therefore, the

defendant's conduct was illegal prior to the 2010 amendments as

well as after.    The statutory amendments had no retrospective

effect that operated to the detriment of the defendant.      See

Commonwealth v. Fuller, 421 Mass. 400, 408 (1995).     The evidence

was sufficient, and the convictions do not violate the ex post

facto prohibitions of the Federal or Massachusetts

Constitutions.

    c.     Ineffective assistance of counsel.   The defendant

argues that the judge erred in the denial of his motion for a

new trial, which claimed that the defendant received ineffective

assistance of counsel.    Specifically, the defendant asserts that

counsel failed to move to dismiss the complaint on the grounds

that G. L. c. 265, § 13F, was void for vagueness, failed to

argue effectively that the Commonwealth's evidence was

insufficient, and failed to request jury instructions that the

defendant could not be convicted based on acts occurring prior

to November 2, 2010, the effective date of the statutory
                                                                    23


amendments.    We conclude that the defendant's counsel was not

ineffective because such motions and arguments would not have

succeeded.

    When analyzing an ineffective assistance of counsel claim,

a defendant must first show that "there has been serious

incompetency, inefficiency, or inattention of counsel" and

behavior that falls "measurably below that which might be

expected from an ordinary fallible lawyer."    Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).    If the first prong is

satisfied, then a defendant must show "whether it has likely

deprived the defendant of an otherwise available, substantial

ground of defence."     Id.

    For the reasons stated above, the defendant's trial counsel

would not have been successful on a motion to dismiss on the

ground that G. L. c. 265, § 13F, is void for vagueness.

Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) ("It is not

ineffective assistance of counsel when trial counsel declines to

file a motion with a minimal chance of success").    For the

reasons stated above, the defendant's other arguments also would

not have been successful.

    3.      Motion for required finding of not guilty -- indecent

exposure.    The defendant asserts error in the denial of his

motion for a required finding on not guilty as to the indictment

alleging indecent exposure.    Specifically, he argues that the
                                                                   24


Commonwealth presented insufficient evidence that he

intentionally exposed his genitals to Amy and that Amy was

offended by the exposure.19   The Commonwealth argues that it

presented sufficient evidence on the charge of indecent exposure

because a reasonable person in Amy's position would have been

offended by the defendant's act of forcing Amy's head down

toward his penis for the purpose of placing her mouth on his

penis.    We agree with the Commonwealth.

     Indecent exposure requires proof of an "intentional act of

lewd exposure, offensive to one or more persons."   Commonwealth

v. Swan, 73 Mass. App. Ct. 258, 261 (2008), quoting Commonwealth

v. Broadland, 315 Mass. 20, 21-22 (1943).   The exposure of one's

genitalia is a necessary element to indecent exposure.

Commonwealth v. Arthur, 420 Mass. 535, 540-541 (1995).

Offensive behavior are acts "that cause 'displeasure, anger or

resentment'" and are "repugnant to the prevailing sense of what

is decent or moral."    Commonwealth v. Sullivan, 469 Mass. 621,

625 (2014), quoting Commonwealth v. Cahill, 446 Mass. 778, 781

(2006).


     19
       The defendant argues that the Commonwealth presented two
independent factual bases for indecent exposure. However, this
is unclear because the Commonwealth only discusses the incident
where the defendant forced Amy's head down to his penis. The
Commonwealth's argument that sufficient evidence was presented
to convict on the charge of indecent exposure discussed only
that one incident.
                                                                     25


    Amy testified that one night near the defendant's camper,

the defendant put his hand behind her head and forced it down

toward his "private part."     When asked whether "boys pee from

their private part," Amy answered, "Yes."     Amy first testified

that it was so dark out that she could not even see his "private

part."   However, when asked whether his "private part" was

inside or outside of his pants, she responded that it was

outside of his pants.    She could not remember what his "private

part" looked like.   Amy testified that the defendant wanted her

to put her mouth on his "private part" but she told him no and

that she wanted to go inside.

    The defendant argues that there is insufficient evidence

that he intentionally exposed his genitals to Amy.     He argues

that Amy unambiguously testified that it was too dark out to see

the defendant's penis.     Although Amy did testify that it was so

dark out that she could not even see his "private parts," she

also testified that his "private part" was outside of his pants.

Conflicting inferences that can be drawn from the evidence are

for the jury to resolve.     Commonwealth v. Miranda, 458 Mass.

100, 113 (2010), cert. denied, 132 S. Ct. 548 (2011).     "When

assessing the sufficiency of the evidence, we resolve issues of

credibility in favor of the Commonwealth . . . ."     Commonwealth

v. James, 424 Mass. 770, 785 (1997).     The jury reasonably could

infer (as did Amy when she testified that the defendant wanted
                                                                    26


her to effect oral sex on him) that the defendant exposed his

penis and pushed her head down toward his penis because it was

his intention that Amy effect fellatio.     We conclude that the

Commonwealth presented sufficient evidence for a reasonable

trier of fact to find that the defendant exposed his penis to

Amy.

       The defendant further argues that Amy never testified that

she was offended any of the times that she saw the defendant's

penis.20    Although Amy never specifically testified that she was

offended by the defendant's actions, she did describe the

defendant's act of grabbing the back of her head and forcing her

head down toward his penis.     She testified that she told him

that she did not want to do that and that she wanted to go

inside.     A jury rationally could infer that by saying no and by

expressing her desire to detach herself from the situation, she

felt "displeasure" toward defendant's conduct.    See Sullivan,

469 Mass. at 625, quoting Cahill, 446 Mass. at 781.     We are

satisfied that the Commonwealth presented sufficient evidence

from which a reasonable trier of fact could determine that Amy

was offended by the defendant's conduct.

       20
       The defendant is unclear in his brief as to what
incidents he is referring; however, he argues that the
Commonwealth must prove beyond a reasonable doubt that the
defendant exposed his genitals and on the same occasion offended
the victim. We will limit our discussion to whether Amy was
offended during the incident where the defendant forced her head
down.
                                                                   27


    4.    Motion for required finding of not guilty -- accosting

or annoying a person of the opposite sex.   The defendant

contends that the judge erred by not granting his motion for a

required finding as to the indictment alleging accosting or

annoying a person of the opposite sex.   Specifically, he argues

that the Commonwealth presented insufficient evidence to

establish that the defendant's conduct was disorderly.      The

Commonwealth responds that the defendant's act of forcing Amy's

head toward his penis for the purpose of oral sex was offensive

and disorderly conduct.

    General Laws c. 272, § 53, states that "persons who with

offensive and disorderly acts or language accost or annoy

another person . . . shall be punished."    The statute requires

proof beyond a reasonable doubt that the act was both offensive

and disorderly.   Commonwealth v. Lombard, 321 Mass. 294, 296

(1947).   The requirements of being offensive and being

disorderly are distinct from one another.    Id.   The Commonwealth

also must prove that the acts were offensive and disorderly to a

reasonable person, applying an objective standard.    Sullivan,

469 Mass. at 625; Cahill, 446 Mass. at 781, citing Chou, 433

Mass. at 235.

    Offensive acts, as discussed above "cause a complainant to

feel displeasure, anger, resentment, or the like, and such acts

or language would be considered indecent or immoral by a
                                                                     28


reasonable person."   Sullivan, 469 Mass. at 625.    Offensive acts

also require "proof of sexual conduct or language, either

explicit or implicit."     Id. at 626.   We have determined that

explicit sexual conduct is self-explanatory and implicit sexual

conduct or language means conduct or language, "which a

reasonable person would construe as having sexual connotations."

Id.

      Disorderly conduct is distinct from offensive conduct.

Lombard, 321 Mass. at 296.     Disorderly acts "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."   Chou, 433 Mass. at 233.    To be physically

offensive, a defendant must act in such a way that a reasonable

person would fear "imminent physical harm."     Sullivan, 469 Mass.

at 627.   Context is taken into account when analyzing whether

acts are physically offensive or threatening.     Id. at 628,

quoting Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 16 (2007)

("context is critical").    The jury could have found that the

defendant's act of forcing Amy's head down toward his penis

caused her to fear imminent physical harm.

      The incident in question here is, again, the defendant's

act of forcing Amy's head down toward his penis.     The defendant
                                                                     29


argues that the evidence the Commonwealth presented demonstrates

that the defendant's actions were brief and minimal and fall

outside the spectrum of that which is offensive.    We disagree.

As discussed above, the defendant's act of forcing Amy's head

down for the purpose of engaging in oral sex was offensive.     As

the defendant was forcing her head down, Amy told him no and

that she wanted to go back inside.    A reasonable person would

infer from Amy's inclination to go back inside that at the very

least she felt "displeasure," and in fact was offended by the

conduct.   Sullivan, 469 Mass. at 625.   The act of forcing Amy's

head down toward his penis also can be construed as a physically

offensive condition.    Viewing the events in context, Amy

reasonably could have feared imminent physical harm.    The

incident occurred outside, and at night, near the defendant's

camper.    Amy is intellectually disabled and significantly

younger than the defendant.    This was not just one isolated

incident of the defendant making sexual advances toward Amy.

Amy testified to various times where he touched her breasts and

her vagina.    Viewing the defendant's actions within this context

could place a reasonable person in fear of imminent physical

harm.   Additionally, forcing a person's head down toward one's

penis to engage in sexual conduct could place a reasonable

person in fear of imminent physical harm.    We conclude that the

Commonwealth provided sufficient evidence that the defendant's
                                                                  30


behavior was disorderly, and that the motion for a required

finding of not guilty properly was denied.

    5.   Conclusion.   For the foregoing reasons, we determine

G. L. c. 265, § 13F, as amended through St. 2010, c. 239, §§ 71-

72, to be constitutional, and we affirm the defendant's

convictions of indecent assault and battery on a person with an

intellectual disability, indecent exposure, and accosting or

annoying a person of the opposite sex.   We also affirm the

orders denying the defendant's motions for a new trial and for

required findings of not guilty.

                                   So ordered.
