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17-P-1270                                             Appeals Court

               COMMONWEALTH   vs.   BRUCE MEDEIROS.


                         No. 17-P-1270.

        Bristol.      October 12, 2018. - April 4, 2019.

   Present:   Vuono, Meade, Milkey, Desmond, & Wendlandt, JJ.1


Practice, Criminal, Revocation of probation. Due Process of
     Law, Probation revocation, Notice. Notice.



     Indictments found and returned in the Superior Court
Department on March 4, 2002.

     A proceeding for revocation of probation was heard by Renee
P. Dupuis, J.


     Tara B. Ganguly for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.




    1  This case was initially heard by a panel comprised of
Justices Milkey, Desmond, and Wendlandt. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices Vuono
and Meade. See Sciaba Constr. Corp. v. Boston, 35 Mass. App.
Ct. 181, 181 n.2 (1993).
                                                                     2


    DESMOND, J.      In this case, we consider the meaning of a

special probation condition to "have no involvement with minors

without responsible adult supervision."    Because we conclude

that the defendant had sufficient notice that trying to enter a

grammar school through a locked rear door, without adult

supervision and during classroom hours, violated this condition,

we affirm the finding of a violation of the defendant's terms of

probation and affirm the order revoking probation and imposing

sentence.

    Background.      In 2001, the defendant was arrested for

displaying child pornography and exposing himself to two girls,

aged nine and eleven, who were walking home from school.       For

that offense, the defendant pleaded guilty in 2002 to two counts

of dissemination of matter harmful to a minor, two counts of

dissemination of child pornography, and three counts of

possession of child pornography.    He received concurrent terms

of four to five years in State prison on his convictions of

dissemination of matter harmful to a minor and possession of

child pornography.    He also received a five-year probationary

term for his convictions of dissemination of child pornography,

which was set to begin after his release from State prison.       One
                                                                    3


of the special conditions of his probation was to have "no

involvement with minors without responsible adult supervision."2

     The 2002 convictions also violated an existing probation

order in Florida, stemming from another incident where the

defendant had exposed himself to children.    Thus, once he

completed his Massachusetts prison term in 2006, the defendant

was extradited to Florida.   The defendant returned to

Massachusetts in December, 2012, and his five-year probationary

term began at that time.

     At roughly eight o'clock in the morning on December 5,

2013, off-duty New Bedford Police Sergeant Joshua Fernandes was

walking near a Catholic grammar school in New Bedford when he

made eye contact with the defendant, who was walking on the

sidewalk of a cross street that ran along the front of the

school.   When Sergeant Fernandes peered over his shoulder, he

saw the defendant do an "about face" and reverse his direction

to move toward the school building.   The building was surrounded

by a ten-foot high chain link fence, with gaps at the stairwells

that led to the school's exterior doors.     Sergeant Fernandes

observed the defendant enter the schoolyard and approach a


     2 The defendant's special conditions also included: to have
no direct or indirect contact with the victims, to attend sexual
perpetrator counseling, to surrender his computer hard drive
upon request or allow the police to purge its contents, and to
submit a deoxyribonucleic acid (DNA) blood sample upon request.
                                                                    4


ground level door in the back of the school.    The door was

secured by a keypad locking mechanism, equipped with an intercom

and surveillance system, and was marked, "Please close the door

firmly behind you."    The sergeant watched the defendant peer

into the school through the glass portion of the door, grab the

door handle, and "attempt[] to open it," but he was thwarted by

the locking mechanism.

     The defendant then followed a blacktopped area on school

property toward another entrance in the back of the building.

At that point, Sergeant Fernandes used his cell phone to call a

marked unit for assistance, and subsequently lost sight of the

defendant for approximately thirty seconds.    When the sergeant

next saw the defendant, he was on the sidewalk adjacent to a

third entrance to the school, heading toward a nearby bus stop.

     Suspicious of the defendant's behavior, Sergeant Fernandes

called for a marked police unit to the area and approached the

defendant at the bus stop and identified himself as a police

officer.   He twice asked the defendant why he had tried to gain

access to the school, but the defendant did not give a direct

answer.    Sergeant Fernandes next asked what he was doing in the

area.   The defendant stated that he had taken a bus from his

home to Melville Towers, a location in downtown New Bedford, and

then had gone to a store north of the school to buy cigarettes.

Sergeant Fernandes was familiar with the area, and knew there
                                                                    5


was a store adjacent to Melville Towers that sold cigarettes.

He therefore inquired why the defendant would walk away from

Melville Towers to purchase cigarettes.   He received no

response.   Once the marked unit arrived, the sergeant ran a

check on the defendant and learned he was a registered level

three sex offender.3   Sergeant Fernandes notified the school of

the incident and applied for a criminal complaint to issue for

one count of trespass.

     The defendant was served with a written notice of probation

surrender alleging that he had violated the special condition of

probation to "have no involvement with minors without

responsible adult supervision."   The notice also alleged that he

had failed to obey a New Bedford ordinance prohibiting sex

offenders from entering "child safety zones" (as defined in the

ordinance) in violation of the condition of probation that he

obey local, State, and Federal laws.   An initial probation

surrender hearing was scheduled for January 2, 2014, and the




     3 The Sex Offender Registry Board applies a level three
classification when "the risk of reoffense is high and the
degree of dangerousness posed to the public is such that a
substantial public safety interest is served by active
dissemination" of information identifying the defendant and his
offenses. G. L. c. 6, § 178K (2) (c). Level three is the
highest classification possible. Compare level one (low risk of
reoffense); level two (moderate risk of reoffense). See G. L.
c. 6, § 178K (2) (a), (b).
                                                                     6


violation hearing was held across a series of dates in 2014 and

2015.4

     The defendant testified on October 10, 2014, at the

probation violation hearing.    In that hearing, he admitted that

he knew the building was a school, and claimed that he had

approached the school to inquire about a food pantry that was

sponsored by a nearby church.   The judge did not credit the

defendant's testimony,5 and on October 16, 2014, found him to be

in violation of the terms of his probation.    On August 12, 2015,

the judge revoked the defendant's probation and sentenced him to

ten to fourteen years in State prison.    This appeal followed.




     4 The evidentiary component of the violation hearing took
place on three dates in the spring and fall of 2014, and the
dispositional component took place on four dates from the fall
of 2014 through the summer of 2015. The delays in the
proceedings, while unexplained on the record, appear to be
related at least in part to an inability to acquire the
defendant's treatment center records. Proceedings were also
continued multiple times at the request of the defendant or the
Commonwealth or by agreement, and once because one of the
attorneys was scheduled for another trial.

     5 At the hearing, the defendant argued that he lacked a
"bad" intent in entering the school grounds. The defendant
never told Sergeant Fernandes that he was looking for a food
pantry, and testified that his statement to Sergeant Fernandes
was inaccurate. The judge noted this inconsistency, as well as
several others in the defendant's testimony. To the extent the
defendant challenges the judge's findings, his arguments are
without merit. See Commonwealth v. Janovich, 55 Mass. App. Ct.
42, 50 (2002) (assessing weight and credibility of evidence is
exclusively province of hearing judge).
                                                                     7


     Discussion.    On appeal, the defendant argues that the judge

abused her discretion in finding that his conduct violated the

probation condition barring involvement with minors without

responsible adult supervision.   Alternatively, he asserts that

he lacked sufficient notice of the scope of that condition.

These are overlapping questions, so we address them together.6

     "A determination whether a violation of probation has

occurred lies within the discretion of the hearing judge.[7]

Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990).    The

Commonwealth must prove a violation of probation by a

preponderance of the evidence.    Commonwealth v. Nunez, 446 Mass.

54, 59 (2006)."    Commonwealth v. Bukin, 467 Mass. 516, 519-520

(2014).   Interpreting a condition of probation is essentially a

question of law.    United States v. Gallo, 20 F.3d 7, 11 (1st

Cir. 1994).   "Due process requires that a probationer receive




     6 See Commonwealth v. Kendrick, 446 Mass. 72, 75 n.5 (2006)
("[D]isputing [that] the term . . . applied to his behavior
. . . [and] arguing that the phrase is unconstitutionally vague
when applied in the circumstances of this case . . . simply
recasts the question whether the probation condition reasonably
communicated that his conduct . . . was barred").

     7 "[A] judge's discretionary decision constitutes an abuse
of discretion where we conclude the judge made 'a clear error of
judgment in weighing' the factors relevant to the decision . . .
such that the decision falls outside the range of reasonable
alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9,
15 (1st Cir. 2008).
                                                                    8


fair warning of conduct that may result in revocation of

probation; thus, probation conditions must provide reasonable

guidance with respect to what activities are prohibited."

Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006).    Reasonable

guidance, however, "is not to be confused with the fullest, or

most pertinacious, warning imaginable . . . [and does not have]

to describe every possible permutation, or . . . spell out every

last, self-evident detail."   Gallo, supra at 12.    "This notice

requirement can be satisfied by 'an imprecise but comprehensible

normative standard so that [people] of common intelligence will

know its meaning.'"    Commonwealth v. Riz, 90 Mass. App. Ct. 10,

13 (2016), quoting Kendrick, supra.

    Here, the framework outlined in Kendrick is particularly

instructive.   In Kendrick, the probationer had, in the past,

used his antique automobile and his pet dog to prey on children.

See 446 Mass. at 74.   While he was on probation, with a

condition that he have "no contact [with] children under

[sixteen] [years] of age," id. at 73, the defendant participated

in an antique car show that was held in the parking lot of a

candy store and was attended by children; he displayed his

automobile near a food concession stand, and brought his dog

with him to roam the event.   The Supreme Judicial Court found

that the probation condition for no contact with minors gave

sufficient notice that the probationer was barred from taking
                                                                        9


part in the car show, even if he never engaged with a child in

the process.    See id. at 77.    This reading relied in part on a

number of cases that interpreted "no contact" language broadly,

see id. at 75-76, but also indicated that a special condition

must be read reasonably and "with due regard to the

circumstances in which it was imposed."       Id. at 75.   The court

was particularly troubled by the similarity in the circumstances

of the car show and the defendant's past offenses.         See id. at

77.

      Here, the defendant would constrain the plain meaning of

"no involvement" to require only that the defendant refrain from

physically engaging or interacting with a child.       A similar

claim was rejected in Kendrick.      "The [probation] condition is

not, as the defendant suggests, simply a requirement not to

touch or speak to a child.     'No contact' obviously includes such

conduct, but also requires the defendant to avoid even the

opportunity for such touching or direct communication" (emphasis

added).     Id. at 77.   The defendant here also purports to

distinguish Kendrick because of the language of the no contact

order there.    We disagree.     While Kendrick addressed a different

special condition, that fact need not preclude a similar

outcome.8    "Involvement" is a broad word.    The definition of


      8"Probation violations are considered on a case-by-case
basis." Kendrick, 446 Mass. at 78. For this reason, we also
                                                                    10


"involve" includes to "affect, implicate."    Webster's Third New

International Dictionary 1191 (2002).    "Implicate," in turn,

means to "include"; "entail as a natural . . . concomitant[] or

consequence."   Id. at 1135.   Plainly, the children's safety was

implicated in the defendant's efforts to enter the building

surreptitiously, whether or not they were aware of the

defendant's presence.   Moreover, the defendant was unsupervised

at the time of the incident.   By entering school grounds when

classes were in session, a place he had no right to be, and

trying to enter through the locked back door of the school,

unannounced and unescorted, he involved himself with and

affected the safety of the minors within.    To that end, any

emphasis on the fact that the door was locked is misplaced and

overlooks why the door was locked to begin with (i.e., the

safety of the children).9



decline the defendant's invitation to venture into a
consideration of hypotheticals beyond the facts of this case.

     9 Similarly, we disagree with the defendant's assertion at
oral argument that his conduct was merely an "attempt," and that
to violate the condition, he must have interacted with or
entered the presence of a child. See Kendrick, 446 Mass. at 77
(probation condition required defendant to "avoid even the
opportunity" for prohibited conduct). Cf. Commonwealth v.
Marzilli, 457 Mass. 64, 67 (2010), overruled in part on other
grounds by Commonwealth v. LaBrie, 473 Mass. 754, 763-764 (2016)
(2010) ("the fortuity that the defendant failed in his attempt
to complete a crime does not absolve him from responsibility for
it"). In any event, because this argument was not raised in the
defendant's brief, the claim is not before us. See Kendrick,
446 Mass. at 78 n.9; Mass. R. A. P. 16 (a) (4), as amended, 367
                                                                    11


    Kendrick also teaches that the language of special

probation conditions should be interpreted from the perspective

of a reasonable person who understands the defendant's

background.    See Kendrick, 446 Mass. at 77.     It is relevant,

then, just as it was in Kendrick, to consider the "similarity to

his conduct during his prior offenses."     Id.   This defendant was

serving a five-year probationary term for the dissemination of

child pornography in 2001.     On that occasion, the defendant

exposed himself and showed child pornography to two girls

walking home from school.     Thus, his prior attacks also preyed

on school children and required little in the way of advance

planning.     On the occasion at issue here, the defendant's

behavior was conspicuous enough to catch the suspicion of an

off-duty police officer walking in the area.      Accompanied by no

one, the defendant eschewed the option of entering through the

school's front doors and made no effort to use the intercom at

the rear door.    The defendant gave false responses to the

questions of the officer, and his excuse that he was searching

for a food pantry was post hoc, illogical, and discredited by

the hearing judge.    The defendant did not have a cogent reason

for being at the school, and he admitted during the revocation




Mass. 921 (1975).    See also Cariglia v. Bar Counsel, 442 Mass.
372, 379 (2004).
                                                                    12


hearing to knowing his behavior ran afoul of his probation

conditions.10   The defendant had ample notice his actions were

improper.

     "No involvement without adult supervision" appears to be an

uncommon phrase for probation orders, and the condition surely

could have been articulated in a different way.    However, we

need not overthink its interpretation:   Keeping in mind the

defendant's background -- that of a level three sex offender

with a history of preying on children -- his efforts to

surreptitiously enter a grammar school building during classroom

hours can be understood as involving the children inside.

"[C]onditions of probation can be written -- and must be read --

in a commonsense way."   Gallo, 20 F.3d at 12.    We see no abuse

of discretion in the judge's determination that, in these

circumstances, the defendant violated his condition of probation

to have "no involvement with minors without responsible adult

supervision."11   We therefore affirm the finding of a violation


     10While the testimony surrounding the defendant's admission
is vague, it is incontrovertible that the defendant admitted to
understanding at the time that his actions were contrary to the
scope of his probation conditions; he knew that he was on the
grounds of a school, peering into a school building, and that
the terms of his probation prohibited him from "being around
children."

     11For the first time on appeal, the defendant also
challenges New Bedford's "child safety zones" ordinance as
violative of the Home Rule Amendment, art. 89, § 6 of the
Amendments to the Massachusetts Constitution. Because the
                                                                 2


of the terms of the defendant's probation and affirm the order

revoking probation and imposing sentence.

                                   So ordered.




judge's finding of a probation violation was warranted on the
basis of the "no involvement" condition discussed supra, we need
not address this argument. See Commonwealth v. Guzman, 469
Mass. 492, 500 (2014), quoting Beeler v. Downey, 387 Mass. 609,
613 n.4 (1982) ("We generally decline 'to consider
constitutional issues for the first time on appeal in order to
avoid an unnecessary constitutional decision'"). See also
Commonwealth v. Bartlett, 374 Mass. 744, 749 (1978), quoting
Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347-348
(1936) (Brandeis, J., concurring) (even if properly presented on
the record, "[a] court will ordinarily 'not pass upon a
constitutional question . . . if there is also present some
other ground upon which the case may be disposed of").
     WENDLANDT, J.     (dissenting, with whom Milkey, J., joins)

The question of the scope of conduct prohibited by a probation

condition, on the one hand, and the question of whether the

condition provided fair notice of the conduct proscribed, often

overlap.1    See Commonwealth v. Kendrick, 446 Mass. 72, 75 & n.5

(2006).     However, as this case illustrates, these questions are

not always the same.     We agree with the majority that the

evidence here supports the inference that the defendant tried to

be involved with children even though he understood that any

such involvement, if unsupervised, would violate his probation

condition.     He had fair notice of the conduct proscribed by the

probation condition and attempted nonetheless to violate it.

But his attempt failed, thwarted by a locked door, which

prevented him from having any encounter with a child.     Indeed,

so far as the record shows, he neither saw nor was seen by a

minor.    Thus, although there was ample proof of mens rea, the


     1 Indeed, it appears that, in the typical case, the
dispositive issue is whether the probation condition gave the
defendant fair notice of the proscribed conduct. See, e.g.,
Kendrick, 446 Mass. 72, 75 & n.5 (2006). See also Commonwealth
v. Power, 420 Mass. 410, 421 (1995) (probation condition that
defendant not profit from her criminality was not vague);
Commonwealth v. Adams, 389 Mass. 265, 270 (1983), quoting
Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971) ("if the
language which is challenged conveys sufficiently definitive
warning as to the proscribed conduct . . . it is
constitutionally adequate"); Commonwealth v. Riz, 90 Mass. App.
Ct. 10, 13-14 (2016) (condition that defendant not "minimize"
his criminal activity failed to provide reasonable guidance as
to what conduct was prohibited).
                                                                       2


Commonwealth was unable to demonstrate the actus reus necessary

to make out a violation.    See United States v. Zhen Zhou Wu, 711

F.3d 1, 18 (1st Cir. 2013), quoting United States v. Whiteside,

285 F.3d 1345, 1353 (11th Cir. 2002) ("even where the evidence

is sufficient to show the necessary mens rea, the government

still must always 'meet its burden of proving the actus reus of

the offense'").2   Because what occurred here was an attempted

probation violation, not an actual one, we dissent.3

     Determining the scope of a condition of probation is

essentially a matter of law and, therefore, gives rise to de

novo review on appeal.     See United States v. Gallo, 20 F.3d 7,

11 (1st Cir. 1994).   As with legislative enactments, the task of

construing the scope of a probation condition begins by

reference to the plain and ordinary meaning of the words

comprising the condition.     See id. at 12.   See also Commonwealth



     2 The same fundamental principles apply to State offenses.
See Commonwealth v. Lopez, 433 Mass. 722, 725 (2001) ("A
fundamental tenet of criminal law is that culpability requires a
showing that the prohibited conduct (actus reus) was committed
with the concomitant mental state (mens rea) prescribed for the
offense").

     3 While the defendant did not use the terms "actus reus" and
"attempt" in his brief, he certainly argued that his actions
(which he describes as "touch[ing] the door handle of a school
and walk[ing] away in a span of five seconds") did not cross the
line into prohibited conduct. Accordingly, we do not agree with
the majority's conclusion that the defendant did not raise this
argument in his brief.
                                                                   3


v. Power, 420 Mass. 410, 421 (1995) (applying standards for

construction of statutes to probation condition).   The words of

the probation condition define its scope, measured "by an

'imprecise but comprehensible normative standard so that

[people] of common intelligence will know [their] meaning.'"

Commonwealth v. Riz, 90 Mass. App. Ct. 10, 13 (2016), quoting

Commonwealth v. Kendrick, 446 Mass. at 75.

     Here, the defendant's probation condition proscribed

"involvement with minors without responsible adult supervision."

Whatever may be the outer limits of the conduct encompassed by

the phrase "involvement with minors," at a minimum its plain

meaning requires some degree of engagement or interaction with a

minor.4

     The majority reasons that "involve" broadly means to

"affect, implicate," and that because the "children's safety was

implicated" and "affected" by the defendant's attempt to enter




     4 The term "involve" is defined as “to enfold or envelope so
as to encumber,” “to draw in as a participant,” “engage,
employ,” “to oblige to become associated,” “embroil, entangle,
implicate,” “to occupy (oneself) absorbingly,” “to commit
(oneself) emotionally,” “to enclose in a covering,” “wrap,” “to
surround as if with a wrapping,” “envelop, shroud,” “to
complicate or make intricate in thought or form,” “to wind,
coil, or wreathe about,” “entwine,” “to relate closely,”
“connect, link,” “to have within or as part of itself,”
“contain, include,” “to require as a necessary accompaniment,”
“entail, imply,” “to have an effect on,” “concern directly,”
“affect.” Webster's Third New International Dictionary 1191
(2002).
                                                                     4


the school, he violated the "no involvement with" minors

condition.    However, while the defendant's failed attempt may

have tested the school's security, it had no effect on any of

the children; indeed, so far as the record indicates, no one at

the school was even aware of his presence.    Significantly, the

probation condition proscribes involvement "with" a minor.

There was no evidence that the defendant saw a minor or that a

minor saw him, perforce there was no interaction "with" a child

(or even any implication "for," or effect "on," any child).5

Thus, the defendant's conduct -- an attempt to be involved with

children -- does not fall within the plain meaning of the

condition despite its otherwise expansive breadth.6

     Neither Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010),

overruled on other grounds by Commonwealth v. LaBrie, 473 Mass.

754, 764 (2016), nor Kendrick, 446 Mass. at 74, is to the

contrary.    Marzilli involved a statute that prohibits attempting


     5 Focusing on an alternative definition of the term
"involve," the Commonwealth maintains that the defendant's
conduct "involved" minors because his actions "connected" the
students to him. Given that no student saw the defendant, the
claimed connection is also unsupportable.

     6 Because we conclude that the failed attempt does not
constitute "involvement with" minors, we do not address whether,
in addition, there was any evidence that the defendant's conduct
was "without responsible adult supervision" as further required
by the condition. In addition, we note that the record is
devoid of any evidence that any child at the school was
unsupervised by a responsible adult.
                                                                       5


to commit a crime, G. L. c. 274, § 6.      Pursuant to this statute,

"attempt is a crime separate and distinct from the substantive

offense to which it is connected, one that focuses on, and

punishes, acts that threaten the accomplishment of the

substantive offense, not the substantive offense itself."

LaBrie, 473 Mass. at 764.     Here, there is no probation condition

comparable to the attempt statute.

    In Kendrick, the court considered a probation condition

that the probationer have "no contact with" minors.      The

evidence presented at the probation revocation hearing included

testimony that, for an hour long period, the probationer

positioned himself alongside his antique automobile in the

parking lot of a candy store near a concession stand of a car

show.    See id. at 74.   During that time, he was amid a crowd

that included minors.     See id.   While there was no evidence that

the probationer spoke to any child, children came "within ten to

fifteen feet of the [probationer], perhaps even as close as five

feet."   Id.   And, the probationer allowed his dog to roam the

event -- a ploy he had previously used to lure children to him

before sexually assaulting them.      The court held that the

probationer violated the "no contact with minors" condition,

relying on a series of cases in which a no contact condition had

been violated.   Id. at 75-76.      In each of those cases (and in

Kendrick), there was evidence from which it could be inferred
                                                                   6


that there was some interaction between the defendant and the

protected individual.   In each, at the least, the protected

individual saw or was seen by the defendant.   See, e.g.,

Commonwealth v. Finase, 435 Mass. 310, 311 (2001) (no contact

provision violated when defendant was seen by protected

individual at town concert, first near bandstand and then

approximately three or four feet away from her).7   In contrast,

here, there was no evidence of even this minimal level of

interaction between the defendant and any minors during the five

seconds he spent at the school's door.

     In holding that the defendant's attempt here violates the

condition, the majority reasons that a level three sex offender

who has been convicted of dissemination of pornography to minors

walking home from school (as was the defendant in this case)

should have known that he was barred from going to a school

where minors were present.   Yet, any similarity between the

defendant's present conduct and his past convictions goes only

to the question whether the defendant reasonably understood that


     7 Accord Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919
(1999) (no contact provision violated when defendant is seen by
protected individual more than one block away from her, jumping
up and down and waving at her); Commonwealth v. Delaney, 36
Mass. App. Ct. 930, 931 (1994) (implicitly recognizing that
probationer violates no contact condition where protected
individual sees defendant on her driveway); Commonwealth v.
Tate, 34 Mass. App. Ct. 446, 449 (1993) (probationer violates no
contact condition where protected individual sees him watching
her from "the top of the street").
                                                                    7


the condition prohibited him from interacting with minors --

that is, the similarity is pertinent to the question whether the

defendant had fair notice of the conduct prohibited.   See

Kendrick, 446 Mass. at 75; Gallo, 20 F.3d at 11.   It is of no

assistance in determining whether his failed attempt to enter

the school crossed the prohibited line.8

     Whatever the wisdom of a condition that would have

prohibited the defendant from attempting to enter a school or

walking on school grounds in view of his past offenses,9 the

condition imposed requires, at the least, some evidence that the

defendant interacted or engaged with a minor.   Here, there is no

such evidence.   Even under the flexible normative standard




     8 In finding a probation violation, the hearing judge relied
in part on statements made by the defendant during the probation
revocation hearing that he may have agreed with the judge that
he was prohibited from being around children. As the majority
concedes, these statements are vague, at best. Certainly, the
defendant's position in opposing the revocation was that he did
not violate the terms of his probation. In any event, the
defendant's statements go only to the issue of fair notice; they
do not answer the separate question whether his conduct
constituted a violation or merely an attempted violation.

     9 To be clear, we state no view on the separate question
whether a condition prohibiting the defendant from entering
school grounds could be added prospectively. See Commonwealth
v. Goodwin, 458 Mass. 11, 17 (2010) (recognizing that judge may
modify general or ambiguous probation terms to add "specificity
or clarity"); Buckley v. Quincy Div. of Dist. Court Dep't, 395
Mass. 815, 820 (1985) (recognizing that supervisory court has no
authority to modify probation conditions if there "has been no
material change in the probationer's circumstances").
                                                                   8


applicable to conditions of probation, the condition that the

defendant "must have no involvement with minors without

responsible adult supervision" does not extend to conduct

consisting of no direct or indirect interaction or engagement

with (or even a visual sighting of or by) any child.10




     10The Commonwealth asks that we affirm on two alternative
grounds, which the majority does not reach. First, the
Commonwealth asks that we affirm on the basis that the hearing
judge revoked the defendant's probation because he violated the
local "child safety zones" ordinance. In our view, that ground
is barred by Doe v. Lynn, 472 Mass. 521, 523 n.5 (2015) (holding
similar local ordinance prohibiting sex offenders from being
within designated "child safety zones" was prohibited by Home
Rule Amendment, art. 89, § 6 of the Amendments to the
Massachusetts Constitution). Second, the Commonwealth asks that
we affirm on the basis that revocation was warranted because the
defendant committed criminal trespass. In the face of a
contested factual dispute, however, the hearing judge declined
to find that the defendant violated his probation on the
criminal trespass ground. See Commonwealth v. Moon, 380 Mass.
751, 756 (1980).
