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SJC-12529

             COMMONWEALTH   vs.   JONATHAN E. BROWN.



        Essex.     October 2, 2018. - December 11, 2018.

  Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
               Lowy, Budd, Cypher, & Kafker, JJ.


Deriving Support from Prostitution. Statute, Construction.
     Constitutional Law, Vagueness of statute. Practice,
     Criminal, Instructions to jury, Request for jury
     instructions, Argument by prosecutor. Words, "Pimping."



     Complaint received and sworn to in the Lynn Division of the
District Court Department on June 22, 2012.

     Following review by the Appeals Court, 90 Mass. App. Ct.
1107 (2016), the case was tried before Michael A. Patten, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     David M. Osborne for the defendant.
     Emily R. Mello, Assistant District Attorney, for the
Commonwealth.
     Maura Healey, Attorney General, & Maria Granik, Assistant
Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
                                                                    2


     KAFKER, J.   For over a century the Commonwealth has

outlawed living off of or otherwise sharing in money earned by a

known prostitute.1   Historically, "pimps or purveyors" have been

understood to be the objects of this prohibition, although no

definition of either "pimp" or "purveyor" has ever appeared in

the statutory text, currently codified at G. L. c. 272, § 7.2

Claiming that, without further clarification, the language of

this statute is unconstitutionally vague and that he suffered

prejudice from jury instructions tracking such language, the

defendant, Jonathan E. Brown, seeks reversal of his conviction

on a single count of deriving support from prostitution under

G. L. c. 272, § 7.   We disagree and affirm.

     We conclude that G. L. c. 272, § 7, is constitutional, as

we construe it to target those who, with the intent to profit

from prostitution, live or derive support or maintenance from,

or share in the earnings or proceeds of, the known prostitution




     1 Throughout this opinion we use the term "prostitute" to
refer to a person who engages or offers to engage in sexual
conduct with another person for a fee because that term appears
in the statutory text.

     2 The statute provides that "[w]hoever, knowing a person to
be a prostitute, shall live or derive support or maintenance, in
whole or in part, from the earnings or proceeds of his [(i.e.,
that person's)] prostitution . . . or shall share in such
earnings [or] proceeds . . . shall be punished by imprisonment
in the state prison for a period of five years . . . . The
sentence of imprisonment . . . shall not be reduced to less than
two years . . . ." G. L. c. 272, § 7.
                                                                    3


of others.   We reach this conclusion from reading the statutory

language in the context of common understanding and ordinary

usage, as well as the statute's legislative history and severe

penalty provisions, all of which demonstrate with sufficient

clarity that G. L. c. 272, § 7, is directed at so-called

"pimping."   Because a pimp knowingly and intentionally profits

from the prostitution of another, he or she differs from the

child of a sex worker, a local merchant who sells food to a

known sex worker, or a medical professional who provides a sex

worker with counselling services; the literal language of the

statute may reach all of these individuals, but, unlike a pimp,

they lack the intention to profit from the prostitution of

another.

       Here, the evidence was sufficient for the jury to conclude

that the defendant -- who accompanied a woman to a prearranged

prostitution transaction and was caught, immediately after

leaving the scene with that woman, with the entire proceeds of

the transaction hidden in his shoe -- knowingly and

intentionally profited from the prostitution of another, and

therefore engaged in pimping within the meaning of G. L. c. 272,

§ 7.   While we prospectively clarify the jury instructions to

avoid any possible confusion that this statute might apply to

those who lack such an intent, we discern no prejudicial or

other reversible error in the instant case.
                                                                     4


     1.    Facts.   The facts, in the light most favorable to the

Commonwealth, are as follows.     See Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).

     On June 21, 2012, as part of a national antiprostitution

"sting" operation, law enforcement officers arranged to meet two

women at a hotel in Saugus after responding to Internet

advertisements for female prostitution.     Police were instructed

to watch for two women arriving at the Saugus hotel, and that

evening, a police surveillance team observed two women, the

defendant, and another man arrive at the hotel in a black motor

vehicle.    The two men waited in the vehicle in the rear parking

lot of the hotel while the women went inside to a hotel room.

There, another surveillance team observed as an undercover

officer, posing as a customer, agreed with one of the women to

have sex for $250.     The officer handed the woman $250 in cash,

after which he answered a prearranged telephone call and told

the two women they had to leave.     The women returned to the

vehicle and were driven away with the defendant.3    The police

stopped the vehicle and, after frisking the defendant, found the




     3 On direct examination, a police officer identified the
defendant as the driver of the vehicle, but on cross-
examination, after having his memory refreshed from testimony at
an earlier proceeding, he explained that the defendant was in
either the driver's seat or the front passenger's seat.
                                                                     5


same $250 that the officer had given the woman as payment for

sex hidden in the defendant's shoe.

     The defendant was subsequently charged and convicted at a

bench trial of deriving support from prostitution under G. L.

c. 272, § 7,4 but his conviction was reversed by the Appeals

Court in an unpublished memorandum and order pursuant to its

rule 1:28 due to the prosecution's errors in its closing

argument.    See Commonwealth v. Brown, 90 Mass. App. Ct. 1107

(2016).     Before his second trial, the defendant moved to dismiss

the charge, claiming that the statute was unconstitutional for

vagueness.    That motion was denied.   At the second trial, which

was tried before a jury, the defendant moved for a required

finding of not guilty, relying on the Appeals Court decision in

Commonwealth v. Thetonia, 27 Mass. App. Ct. 783 (1989), which

examined the meaning of the terms "pimp or purveyor" as set out

in the statute's legislative history.     That motion was also

denied.     Finally, relying again on Thetonia, the defendant

sought supplementary instructions that would change Instruction

7.140 of the Criminal Model Jury Instructions for Use in the

District Court (2009) (model jury instruction 7.140).     The

defendant's requested instruction, based on model jury


     4 The defendant was also charged with trafficking of a
person for sexual servitude in violation of G. L. c. 265,
§ 50 (a), but this charge was dismissed before the first trial,
and a nolle prosequi was entered before the second trial.
                                                                    6


instruction 7.140, with his requested supplementary language

emphasized, is as follows:

    "Deriving Support from Prostitution

    "The defendant is charged with knowingly deriving
    support from the earnings of a prostitute. This is
    commonly known as the 'pimping' statute. Chapter 7 of
    Section 272 of our General Laws provides as follows:
    'Whoever, knowing a person to be a prostitute, shall
    live or derive support or maintenance, in whole or in
    part, from the earnings or proceeds of his
    prostitution . . . or shall share in such earnings or
    proceeds . . . shall be punished.'

    "In order to prove the defendant guilty of this
    offense, the Commonwealth must prove three [(and with
    the requested changes, four)] things beyond a
    reasonable doubt:

    "First, that a particular person was engaged in
    prostitution. A prostitute is a person who engages in
    common, indiscriminate sexual activity for hire.

    "Second, The Commonwealth must prove beyond a
    reasonable doubt that the defendant knew [(emphasis in
    original)] that such person was a prostitute; and

    "Third, The Commonwealth must prove beyond a
    reasonable doubt that the defendant shared in some
    substantial way in the earnings or proceeds from that
    person's prostitution.

    "Fourth, The Commonwealth must prove beyond a
    reasonable doubt that the Defendant played a
    substantial role in facilitating this person's
    prostitution. For example, it is not enough if the
    Defendant simply drove the prostitute to a job."

The judge denied the requested supplementary instructions and

gave model jury instruction 7.140.   The jury found the defendant

guilty under G. L. c. 272, § 7, and this appeal followed.
                                                                   7


    2.     Discussion.   a.   Purpose of G. L. c. 272, § 7.   To

determine the meaning of G. L. c. 272, § 7, we begin, as we

must, with the statutory language, interpreted in light of

"ordinary and approved usage" and "sound reason and common

sense" (citations omitted).     Commonwealth v. Brown, 479 Mass.

163, 166-167 (2018).     The text of G. L. c. 272, § 7, imposes

criminal liability when a person (1) knows another person is a

prostitute; and (2) lives off or otherwise shares in money that

the prostitute earned from prostitution activities or received

from a brothel or its employees.     In other words, the statute

plainly targets third parties who knowingly derive their

livelihood or otherwise profit from prostitution.      In common

vernacular and understanding, the statute appears to target

"pimps."

    The legislative history confirms such an understanding of

this century old provision.     See Commonwealth v. Bundy, 465

Mass. 538, 545 (2013), quoting Perry v. Commonwealth, 438 Mass.

282, 285 (2002) ("We cannot interpret statutory language in a

vacuum, ignoring the Legislature's purpose in enacting the

statute and oblivious to 'the time in which [the language] is

used'").   It expressly informs us that the statutory purpose of

G. L. c. 272, § 7, is to target "pimps" who profit from "the

business of commercialized prostitution."     Report of the

Commission for the Investigation of the White Slave Traffic, So
                                                                   8


Called, 1914 House Doc. No. 2281, at 22 (1914 report).   A draft

version of the original 1910 legislation, consistent with nearly

identical contemporary legislation in other States, explicitly

defines the prohibited conduct as "pimping."5   Also, a 1914

report commissioned by the Legislature recommended amending the

1910 statute to better prosecute "pimps and procurers," which it

defined as "exploiters of women" who profit from "the business

of commercialized prostitution." 1914 report, supra at 20, 22,

82-83.   See St. 1914, c. 621 (enacting proposed amendment).6


     5 "Any male person who, knowing a female person to be a
prostitute, shall live or derive support or maintenance, in
whole or in part, from the earnings or proceeds of the
prostitution of such prostitute, or from moneys loaned or
advanced to or charged against such prostitution by any keeper
or manager or inmate of a house or other place where
prostitution is practised or allowed, or who shall tout or
receive compensation for touting for such prostitute, shall be
guilty of pimping . . ." (emphasis added). An Act relative to
the procuring and detaining of women for immoral purposes, 1910
House Bill No. 767, § 3. While the draft legislation does not
use the word "purveyor," § 1 of the draft legislation, a version
of which is codified at G. L. c. 272, § 12, targets "pandering,"
defined as "procuring" women for prostitution purposes. See id.
See also R.G. Latham, A Dictionary of the English Language 668
(1870) (defining "purveyor" as a "[p]rocurer; pimp").

     Several other States have very similarly worded statutes
dating from the same time period that define the proscribed
conduct as "pimping." See 1910 Cal. Stat. 10 (39th sess.,
c. 15); 1915 Del. Laws 2095; 1916 W. Va. Acts 1221. For the
intense contemporary concern with forced prostitution that
inspired State antipimping legislation around this time, see B.
Donovan, Respectability on Trial: Sex Crimes in New York City,
1900-1918 at 108 (2016).

     6 Until 1977, G. L. c. 272, § 7, only applied to female
prostitution.
                                                                    9


Furthermore, G. L. c. 272, § 4B, which criminalizes living off

of or sharing in the earnings of a prostitute who is a minor in

language that parallels the language of G. L. c. 272, § 7, was

introduced as a bill targeting "pimps."7   Finally, the title of

the 1980 session law amending G. L. c. 272, §§ 6 and 7, is "An

Act increasing the penalty for a so-called pimp or purveyor."

St. 1980, c. 409.

     Our case law has also recognized that the statutory

language of G. L. c. 272, § 7, must be read in light of its

purpose of proscribing pimping.   We made this point in passing

when we upheld the penalty provision of the statute in

Commonwealth v. Lightfoot, 391 Mass. 718, 720–721 (1984)

(inferring legislative intent to increase penalties for deriving

support or maintenance from prostitute "from the title of the

act, 'An Act increasing the penalty for a so-called pimp or

purveyor,' St. 1980, c. 409").    The Appeals Court, in Thetonia,

further analyzed and clarified the statutory purpose of

proscribing pimping when it reversed the conviction of a

defendant who, while occasionally receiving small amounts of




     7 General Laws c. 272, § 4B, was introduced by the same
legislator who sponsored a 1980 amendment to G. L. c. 272, § 7,
as "An Act establishing a mandatory prison term for a pimp so-
called, or purveyor or other who induces male and female minors
to become prostitutes and who derives support from them." 1979
House Bill No. 6753.
                                                                   10


money from her friend in exchange for driving her friend to

prostitution activities, "did not . . . engage in pimping"

within the meaning of the statute.   Thetonia, 27 Mass. App. Ct.

at 786-787.

     The severity of the penalty imposed for a felony conviction

under G. L. c. 272, § 7 -- a five-year maximum sentence with a

two-year mandatory minimum sentence -- provides further support

that the statute is directed at the serious crime of pimping.

By contrast, patronizing an adult prostitute and engaging in

prostitution are both misdemeanors punishable by less severe

sentences.8

     The defendant is correct that G. L. c. 272, § 7, absent

such construction, could literally be read to cover innocent

conduct (e.g., the children of a sex worker who know what their

parent does for a living, the local storekeeper who sells food

or clothing to a known sex worker, or a medical professional

providing counselling or other health care services to a sex

worker).   We do not think, however, that the common

understanding of the statutory text, combined with the clear and


     8 Patronizing a prostitute is punishable by a $5,000 maximum
fine or a maximum sentence of two and one-half years, G. L.
c. 272, § 53A (b), while engaging in prostitution is punishable
by a $500 maximum fine or a one-year maximum sentence, G. L.
c. 272, § 53A (a). Under G. L. c. 272, § 62, however, a "common
nightwalker" (i.e., a prostitute who works at night on the
street) may receive a maximum sentence of two and one-half years
if convicted three times of that offense.
                                                                  11


express legislative antipimping purpose, would support its

application in instances -- such as prosecuting a child for

taking a sandwich from his or her mother -- that do not in any

way involve pimping and which the defendant himself

characterizes as "absurd."   See Commonwealth v. Cassidy, 479

Mass. 527, 534, cert. denied, 139 S. Ct. 276 (2018) ("[w]e will

not adopt a literal construction of a statute if the

consequences of such construction are absurd or unreasonable"

[citation omitted]).   In any event, we do not interpret the

prohibition on living off of or sharing in money received from a

known prostitute to include the foregoing individuals, who may

have knowledge of the prostitution and receive some support or

money from the prostitute, but who, unlike a pimp, do not intend

for the prostitution to occur.9

     In short, pimping -- which we define as knowingly and

intentionally profiting from the prostitution of another -- is




     9 This interpretation is consistent with the holdings of
appellate courts of other States. See, e.g., People v. Morey,
230 Mich. App. 152, 164 (1998), aff'd, 461 Mich. 325 (1999)
(statute that prohibits profiting from prostitution containing
knowledge requirement constitutional because it "could not
reasonably be applied to entirely innocent conduct"); State v.
Yancy, 92 Wash. 2d 153, 157 (1979) (statute criminalizing
"profiting from prostitution" constitutional because it does not
reach "persons engaged in legitimate pursuits" who, while they
may receive money from prostitute, lack "an agreement or
understanding . . . to participate in the proceeds of
prostitution activity").
                                                                    12


what the Legislature proscribed when enacting the statute that

is now G. L. c. 272, § 7.

    b.    Constitutionality of G. L. c. 272, § 7.   The defendant

contends that G. L. c. 272, § 7, is unconstitutionally vague.

We upheld the constitutionality of an earlier version of the

statute shortly after its passage.   Commonwealth v. Peretz, 212

Mass. 253, 256 (1912).   See Lightfoot, 391 Mass. at 719 (holding

penalty provision of statute constitutional); Commonwealth v.

Roberts, 372 Mass. 868, 868 (1977) (observing that statute has

been held plainly constitutional).   We now reaffirm the

constitutionality of G. L. c. 272, § 7.

    In order to prevail on a vagueness challenge, a defendant

must show that a statute effects a due process deprivation by

failing to provide (1) a reasonable opportunity for a person of

ordinary intelligence to ascertain what the statute prohibits;

and (2) comprehensible standards that limit prosecutorial and

judicial discretion and thus avoid discriminatory or arbitrary

enforcement.   Commonwealth v. Hendricks, 452 Mass. 97, 102

(2008).   A statute will not be found unconstitutionally vague,

however, "if it requires a person to conform his conduct to an

imprecise but comprehensible normative standard" or "conveys [a]

sufficiently definite warning as to the proscribed conduct when

measured by common understanding and practices" (citations

omitted).   Commonwealth v. McGhee, 472 Mass. 405, 414 (2015).      A
                                                                   13


criminal statute will not "be construed so strictly as to defeat

the obvious intention of the [L]egislature" (citation omitted),

Commonwealth v. Great Atl. & Pac. Tea Co., 404 Mass. 476, 480

(1989), particularly "if its scope is substantially clear"

despite "[u]ncertainty as to whether marginal offenses are

included within the coverage of a statute" (citation omitted),

McGhee, supra.   As we have often recognized, "[i]f a statute can

be made constitutionally definite by a reasonable construction,

the court is under a duty to give it that construction"

(citation omitted).   Great Atl. & Pac. Tea Co., supra at 482.10

    Here, we think it is sufficiently clear and definite in

light of both common and historical understanding that G. L.

c. 272, § 7, criminalizes pimping, that is, living off of or

sharing in the earnings of a known prostitute with an intent to

profit from that person's prostitution.   The defendant, citing

what he calls "absurd" examples of third parties who might fall

within the literal language of the statute (e.g., a child who




    10  Indeed, through judicial construction, we have upheld
several prostitution-related sections of G. L. c. 272 as
constitutional. See Aristocratic Restaurant of Mass., Inc. v.
Alcoholic Beverages Control Comm'n (No. 2), 374 Mass. 564, 568
(1978) ("immoral solicitation or immoral bargaining" provision
of G. L. c. 272, § 26, not unconstitutionally vague);
Commonwealth v. King, 374 Mass. 5, 10 (1977) ("prostitute"
provision in G. L. c. 272, § 53, not unconstitutionally vague);
Thomes v. Commonwealth, 355 Mass. 203, 207 (1969) ("common night
walker" provision of G. L. c. 272, § 53, not unconstitutionally
vague).
                                                                   14


receives a meal paid for by his or her mother's sex work),

contends that the statute is unconstitutionally vague "since on

its face it criminalizes any financial relationship with a

person known to be a prostitute."     We decline, however, to

consider a challenge that a criminal statute is "facially vague"

when the defendant's "vagueness challenge to the statute does

not involve a claim that an overbroad statute threatens

interests protected by the First Amendment to the United States

Constitution."   Hendricks, 452 Mass. at 98 n.1.   See

Commonwealth v. Walter, 388 Mass. 460, 465–466 (1983) (court

will consider whether statute is vague as applied to particular

defendant, not "hypothetical application" of statute to

others).11   Here, the defendant did not raise a First Amendment

argument.    We thus reject his facial challenge to the statute.

     Turning to the constitutionality of G. L. c. 272, § 7, as

applied to the facts of the defendant's case, we likewise find

no merit to that challenge.    Our analysis of the common

understanding of the statutory language, the legislative

history, and the severity of the statutory penalty establishes

that, through the statute's prohibition on living off of or

sharing in the proceeds of prostitution, the Legislature sought

to proscribe the conduct of a pimp:     one who knowingly and


     11Regardless, we have discussed the hypothetical scenarios
the defendant raises in our analysis of the statute, supra.
                                                                    15


intentionally profits from the prostitution of another.      See,

e.g., 1914 report, supra at 22 (describing pimp as someone

profiting from "the business of commercialized prostitution").

As so construed, we do not consider G. L. c. 272, § 7, to be

"vague as applied" to the actual circumstances of the

defendant's case.   Walter, 388 Mass. at 466.   Unlike the

hypothetical prosecutions the defendant imagines, the conduct of

the defendant fits within the core concern of the statute.     In

short, the defendant can only challenge the constitutionality of

the statute as applied to him, and consistent with our judicial

construction of the statute to target those who intend to profit

from the prostitution of another, we hold that G. L. c. 272,

§ 7, is not unconstitutional as applied to this defendant.

     c.   Absence of jury instructions.   In addition to

challenging the constitutionality of G. L. c. 272 § 7, the

defendant argues that he was prejudiced by the trial judge's

failure to issue his requested jury instructions.    These

requested instructions would have supplemented model jury

instruction 7.140, which essentially repeats the statutory

prohibition that makes it a crime for a person, knowing another

person to be a prostitute, to share in the earnings or proceeds

of that person's prostitution.12   Because the defendant properly


     12The instruction also defines a prostitute as a "person
who engages in common, indiscriminate sexual activity for hire."
                                                                     16


preserved his objection to the judge's denial of his requested

instructions, we review for prejudicial error.    See Commonwealth

v. Cruz, 445 Mass. 589, 591 (2005).    Specifically, a judge's

failure to give a requested jury instruction "is reversible

error only if the requested instruction was substantially

correct; was not substantively covered in the jury charge; and

concerns an important issue such that the failure to give the

instruction seriously impaired the defendant's ability to

present a given defense."     Commonwealth v. Deane, 458 Mass. 43,

59 n.15 (2010).   Additionally, we consider whether the absence

of an instruction clarifying that G. L. c. 272, § 7, expressly

requires intent to profit from the prostitution of another

caused a substantial risk of a miscarriage of justice.     See

Commonwealth v. Richardson, 479 Mass. 344, 353 (2018) (where

defendant does not request jury instruction at trial, reviewing

court applies substantial risk of miscarriage of justice

standard).

    As explained above, the defendant requested three

supplementary instructions.    First, he requested that a sentence

be added indicating that G. L. c. 272, § 7, "is commonly known

as the 'pimping' statute."    Second, he requested that the word

"substantial" be added to the requirement that he have received



Instruction 7.140 of the Criminal Model Jury Instructions for
Use in the District Court (2009).
                                                                    17


support and maintenance from the earnings of a prostitute.

Finally, he requested that the following fourth element be

added:    "Fourth, The Commonwealth must prove beyond a reasonable

doubt that the Defendant played a substantial role in

facilitating this person's prostitution.    For example, it is not

enough if the Defendant simply drove the prostitute to a job."

On appeal the defendant, relying on Thetonia, further seeks to

limit the definition of "pimping" to procuring customers for a

client.   See Thetonia, 27 Mass. App. Ct. at 786 & n.4 (defining

"pimp" as one "who obtains customers . . . for a . . .

prostitute" or "cohabits with a prostitute, lives off her

earnings and often solicits for her" [citations omitted]).

     First, we consider the defendant's request to have the jury

instructed that G. L. c. 272, § 7, is "commonly known as the

'pimping' statute."    We agree that this statement is correct as

a matter of legislative history and common understanding.     As

explained, however, we do not see the necessity for further

emphasizing this common understanding in these circumstances.

Moreover, without further definition of "pimping," such

instruction would provide little additional guidance to the

jury.

     Second, the defendant's request for an instruction that the

Commonwealth must prove that he "shared in some substantial way"

in the earnings of prostitution is not an accurate statement of
                                                                    18


the law.   The key factor is the defendant's intention to profit

from the prostitution of a known prostitute, not the

substantiality of the defendant's gains.

     Third, we conclude that the fourth element that the

defendant sought to add -- substantial facilitation of another's

prostitution -- is not a necessary aspect of "pimping"

proscribed by G. L. c. 272, § 7.   It is true that standard

definitions of "pimping" -- including one suggested by Thetonia

-- describe facilitation of, as well as profiting from,

prostitution.13   Yet G. L. c. 272, § 7, makes no mention of

facilitation of prostitution (which would include, for example,

soliciting for customers) because the Legislature chose to

criminalize such conduct under separate sections of G. L.

c. 272, not as a required element of   G. L. c. 272, § 7.     See

St. 1910, c. 424 (enacting or amending present G. L. c. 272,

§§ 2, 6, 8, 12, and 13).   See also Commonwealth v. Alfonso, 449

Mass. 738, 744 (2007) ("Statutes that relate to a common subject




     13See Commonwealth v. Thetonia, 27 Mass. App. Ct. 783, 786
n.4 (1989) (defining "pimp" as "man who cohabits with a
prostitute, lives off her earnings, and often solicits for her"
[citation omitted]). See also Oxford English Dictionary Online
(defining "pimp" as "a man who takes a proportion of the
earnings of a prostitute, usually in return for arranging
clients, providing protection, etc."). This definition of a
pimp as one who facilitates prostitution for profit is long-
standing. See, e.g., R. Jameson, A Dictionary of the English
Language: By Samuel Johnson and John Walker 286 (1828)
(defining "fleshmonger" as "[o]ne who deals in flesh; a pimp").
                                                                   19


matter should be construed together so as to constitute an

harmonious whole" [quotations and citation omitted]).

    Finally, we consider whether the jury should have received

an instruction, consistent with the statutory interpretation

that we provide in this decision, explaining that the

prosecution must show that the defendant intentionally profited

from the prostitution of another.    Although we conclude that

such an instruction should be given prospectively, it was not

required in the instant case.    The Criminal Model Jury

Instructions for Use in the District Court required the jury to

determine that another person engaged in prostitution, the

defendant knew that the other person was engaged in the

prostitution, and the defendant received the proceeds from that

prostitution.   As explained above, the common understanding of

this language would be that it targets pimping, and the factual

scenario here did not present concerns about innocent activity

that might otherwise meet the literal language of the statute.

Rather, the defendant's conduct fell within the core concern of

the statute.    In sum, we conclude that such an instruction was

not required in the instant case.

    We do decide, however, that the jury instructions for this

crime should be expanded prospectively beyond those included in

the Criminal Model Jury Instructions for Use in the District

Court to avoid prosecution and thus possible conviction for
                                                                   20


conduct that could not be classified as pimping but might

otherwise meet the literal language of the statute.   Model jury

instruction 7.140 should be modified as follows by inserting the

emphasized language and deleting the struck through language:

    "Deriving Support from Earnings of a Prostitute

         "The defendant is charged with knowingly
    (deriving support from) (sharing in) the earnings of a
    prostitute. This statute makes it a crime to engage
    in 'pimping,' that is, 'knowingly and intentionally
    profiting from the prostitution of another.'

         "Chapter 7 of section 272 of our General Laws
    provides as follows:

         "'Whoever, knowing a person to be a prostitute,
    shall live or derive support or maintenance, in whole
    or in part, from the earnings or proceeds of his
    prostitution . . . or shall share in such earnings
    [or] proceeds . . . shall be punished . . . .'

         "In order to prove the defendant guilty of this
    offense, the Commonwealth must prove three things
    beyond a reasonable doubt:

         "First: That a particular person was engaged in
    prostitution. A prostitute is a person who engages in
    common, indiscriminate sexual activity for hire.

         "Second: The Commonwealth must prove beyond a
    reasonable doubt that the defendant knew that such
    person was a prostitute had knowledge of, and intended
    to profit from, this person's prostitution; and

         "Third: The Commonwealth must prove beyond a
    reasonable doubt that the defendant shared in some way
    in the earnings or proceeds from that person's
    prostitution."

    d.   Other arguments.   The defendant also argues that (1)

G. L. c. 272, § 7, lacks a mens rea requirement; (2) the
                                                                  21


evidence was insufficient to convict him; and (3) the

prosecution committed reversible error in its closing argument.

     Given our holding that G. L. c. 272, § 7, requires an

intent to profit from the prostitution of another, we reject the

defendant's argument that this statute lacks a mens rea element.

     We also reject the defendant's arguments that the evidence

was insufficient to support his conviction when viewed in the

light most favorable to the Commonwealth.   See Commonwealth v.

Bin, 480 Mass. 665, 674 (2018) (reciting sufficiency of evidence

standard).   The defendant's main insufficiency argument hinges

on his contention that G. L. c. 272, § 7, incorporates the

facilitation of prostitution as a necessary element, but for the

reasons discussed supra, we reject that argument.14

     Viewing the evidence in the light most favorable to the

Commonwealth, a rational trier of fact reasonably could have

inferred from witness testimony and circumstantial evidence that

the defendant knowingly and intentionally profited from the

prostitution of another.   The defendant was in the vehicle in

which a woman was driven to a hotel in response to an online

advertisement for sexual services, and he waited in the parking




     14Regardless, the jury could reasonably have found that the
defendant facilitated the act of prostitution when he
accompanied the woman engaged in prostitution to the place of
prostitution and helped her conceal the proceeds of that
prostitution.
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lot while the woman went into the hotel to the prearranged

prostitution transaction.   That woman accepted money for sex and

then immediately gave the defendant the money, which he

concealed in his shoe.   From this conduct the jury could infer

that the defendant knew that the woman was a prostitute, knew

she had received money for engaging in an act of prostitution,

and, by taking the money from her, revealed an intention to

profit from prostitution.   See Commonwealth v. Matos, 78 Mass.

App. Ct. 578, 589-590 (2011) (evidence sufficient to convict

defendant under G. L. c. 272, § 7, where he accompanied

prostitute to commercial sexual encounter at hotel arranged over

Internet, picked her up from hotel, and took all proceeds of

transaction).

    Finally, we do not agree that any errors in the

prosecutor's closing argument require reversal.    The defendant

makes much of one prosecution witness's equivocation as to

whether the defendant was driving the vehicle that transported

the two women to and from the hotel or instead may have been in

the front passenger's seat.   See note 3, supra.   Whether or not

the defendant was driving, as the prosecution said in its

closing argument, the evidence still revealed that he

accompanied the prostitute to and from the prearranged

prostitution transaction at the hotel and received the proceeds

from the transaction.    See Matos, 78 Mass. App. Ct. at 589-590
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(upholding sufficiency of evidence supporting defendant's

conviction where he accompanied prostitute to and from hotel).

And the prosecutor's statement that the second woman was a

prostitute, which was not objected to below, was harmless in

light of the ample evidence that the first woman engaged in a

prostitution transaction.

     3.   Conclusion.   For the foregoing reasons, we affirm the

defendant's conviction.   Additionally, we approve the model jury

instructions set out above for future prosecutions under G. L.

c. 272, § 7.15

                                    So ordered.




     15Similar jury instructions should be used for prosecutions
under G. L. c. 272, § 4B, the parallel antipimping statute for a
prostitute who is a minor.
