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SJC-11717

                  COMMONWEALTH   vs.   ROBERT JONES.



       Middlesex.       December 1, 2014. - April 9, 2015.

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


Indecent Assault and Battery. Obscenity, Dissemination of
     matter harmful to minor. Statute, Validity.
     Constitutional Law, Freedom of speech and press. Practice,
     Criminal, Argument by prosecutor.



     Indictments found and returned in the Superior Court
Department on April 26, 2012.

    The cases were tried before Maureen B. Hogan, J.

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


     Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
     Anne M. Paruti, Assistant District Attorney (Jessica L.
Langsam, Assistant District Attorney, with her) for the
Commonwealth.


    GANTS, C.J.     A Superior Court jury convicted the defendant

on two indictments charging indecent assault and battery on a
                                                                    2



child under fourteen, in violation of G. L. c. 265, § 13B, and

one indictment charging dissemination of matter harmful to

minors, in violation of G. L. c. 272, § 28.1   The defendant

presents two claims on appeal.   First, he contends that, during

the time period alleged in the indictment, § 28 was facially

overbroad because it did not explicitly require the Commonwealth

to prove that the defendant knew that the person receiving the

harmful matter was a minor.   Second, he argues that the

prosecutor's closing argument created a substantial risk of a

miscarriage of justice by suggesting that the defendant would

have committed further sexual offenses against one of the child

victims had the child not moved away.   We conclude that, during

the relevant time period, § 28 was not unconstitutionally

overbroad because we interpret the statute to have implicitly

required knowledge that the recipient was a minor as an element

of the crime.   We also conclude that the prosecutor's suggestion

that the defendant would have committed further sexual offenses

against the victim was improper but, in the context of the

entire closing argument, did not create a substantial risk of a

miscarriage of justice.   We therefore affirm the convictions.

     Background.   The two victims were the defendant's nephews,

sons of two different sisters of the defendant.   In 2006, one

     1
       An additional charge of indecent assault and battery on a
child under fourteen was nol prossed before trial.
                                                                    3



victim, C.J., who was approximately eleven years old, moved with

his mother and younger brother to Woburn, which is also where

the defendant was living at C.J.'s grandmother's house.     A few

days during each school week, and nearly every day during the

summer, C.J. went to his grandmother's house where he and the

defendant spent time together playing video games, using a

computer, and playing sports.   Because C.J. looked up to the

defendant as a father figure, he did not feel uncomfortable when

the defendant began asking him about his physical development

through puberty.   The defendant would routinely ask C.J. about

any physical changes to his body and at one point asked if he

had started to "play" with his genitals.

    In the summer of 2007, when C.J. was approximately twelve

years old, the defendant began asking to see his genitals.      With

no one else in the room, the defendant and C.J. would often be

sitting on the bed in the defendant's bedroom, playing video

games or watching television, and the defendant would ask to see

if any pubescent changes had occurred.     C.J. would then stand

up or kneel on the bed and pull down his pants and underwear;

the defendant would look and touch with his hand the pubic

region immediately above C.J.'s penis, but would not touch the

penis itself.   The defendant did not show his genitals to C.J.

or ask C.J. to perform any sexual act with the defendant.
                                                                     4



     This pattern of asking to see C.J's genitals and touching

his pubic region occurred at least twice a week, and continued

for about one year before C.J. began to feel uncomfortable.

C.J. first viewed these interactions as appropriate for a father

figure to have with a son, but he felt more uncomfortable after

he recognized that the defendant was asking to see his genitals

nearly every time he visited.2    These interactions between the

defendant and the victim stopped after C.J's family moved to

Tewksbury in the summer of 2008, and shortly thereafter moved to

New Hampshire.

     The second victim, J.B., also lived in Woburn, with his

mother, stepfather, and sister.    In 2007, J.B. was approximately

nine years old and in fourth grade, and often went after school

to his grandmother's house, where the defendant lived.     The

defendant and J.B. had a close relationship; they played sports,

attended sporting events, and went ice-skating together.     For

three years, when J.B. was in the fourth, fifth, and sixth

grades, the defendant went to his house to watch almost every

Boston Bruins hockey game.




     2
       The defendant also routinely kissed C.J. on the lips when
they parted. C.J. testified that kissing on the lips was a
common greeting or farewell gesture in his family, but he
started to feel uncomfortable when the defendant began kissing
him multiple times and holding the kiss longer.
                                                                       5



    In the summer before J.B. was starting either fourth or

fifth grade, the defendant asked him how puberty was going, but

he did not know what puberty was.    The defendant did not raise

the topic again until the following winter.    While the defendant

and J.B. were alone watching television, the defendant asked,

"How is puberty hitting you?"    The defendant said, "Well, let me

see then.   I'll tell you how puberty is."    J.B. then pulled down

his pants and boxer shorts.     From this point forward, about

every other week, the defendant asked to see J.B.'s penis and

J.B. showed him.   The defendant did not touch J.B.'s penis

during these interactions.

    On one occasion, when J.B. was in fifth grade, sometime

between 2007 and 2008, the defendant asked him to look at

something on the defendant's computer.     J.B. sat on the

defendant's lap while the defendant opened a computer program

used for downloading music and video recordings.     As the

defendant scrolled through a list of pornographic video

recordings, J.B. saw images of nude adult men and women

displaying their genitals and engaging in sexual intercourse.

The defendant then played a specific video recording, which

showed a group of nude women using icicles as sexual toys.       The

defendant asked J.B. if he had ever searched for materials

similar to what was shown in the video recording, and J.B. said
                                                                       6



"no."    As they watched the video recording, the defendant

unbuttoned J.B.'s pants and pulled down his pants and boxer

shorts.   The defendant grabbed J.B.'s penis and stroked it with

two of his fingers.      J.B. did not recall any other instance

where the defendant touched his genitals or showed him

pornography.

     Discussion.    1.    Dissemination of matter harmful to minors.

At the time of the charged conduct, G. L. c. 272, § 28, as

appearing in St. 1982, c. 603, § 2, provided, "Whoever

disseminates to a minor any matter harmful to minors, as defined

in [G. L. c. 272, § 31], knowing it to be harmful to minors, or

has in his possession any such matter with the intent to

disseminate the same to minors" shall be guilty of a crime.3

Since then, the scope of the statute has twice been amended.      In

2010, the Legislature amended § 31 to add to the definition of

"matter" "any electronic communication including, but not

limited to, electronic mail, instant messages, text messages, or

any other communication created by means of use of the Internet

     3
       "Harmful to minors" is defined as "matter" that is
"obscene, or if taken as a whole, . . . (1) describes or
represents nudity, sexual conduct or sexual excitement, so as to
appeal predominantly to the prurient interest of minors; (2) is
patently contrary to prevailing standards of adults in the
county where the offense was committed as to suitable material
for such minors; and (3) lacks serious literary, artistic,
political or scientific value for minors." G. L. c. 272, § 31.
"Minor" is defined as "a person under eighteen years of age."
Id.
                                                                   7



or wireless network."   St. 2010, c. 74 § 2.4   In 2011, the

Legislature amended § 28 explicitly to require that the

dissemination be purposeful and "to a person [the defendant]

knows or believes to be a minor."   St. 2011, c. 9, § 19.5,6


     4
       This amendment was enacted after we held that the earlier
definition of "matter" in § 31 did not encompass electronically
transmitted texts or online conversations. See Commonwealth v.
Zubiel, 456 Mass. 27, 33 (2010).
     5
       The amended G. L. c. 272, § 28, now reads, in relevant
part, "Whoever purposefully disseminates to a person he knows or
believes to be a minor any matter harmful to minors . . .
knowing it to be harmful to minors, or has in his possession any
such matter with the intent to disseminate the same to a person
he knows or believes to be a minor, shall be punished . . . . A
person who disseminates an electronic communication . . . shall
not be found to have violated this section unless he
specifically intends to direct the communication to a person he
knows or believes to be a minor" (emphasis added). St. 2011,
c. 9, § 19.
     6
       The 2011 amendment of § 28 followed the issuance of a
preliminary injunction by a judge of the United States District
Court for the District of Massachusetts, who declared that the
2010 amendments to § 31, as incorporated within § 28, violated
the First Amendment to the United States Constitution. American
Booksellers Found. for Free Expression vs. Coakley, U.S. Dist
Ct., No. 10-11165-RWZ, at 9 (D. Mass. Oct. 26, 2010). The
preliminary injunction arose from a civil suit filed by several
individuals and organizations that used the Internet to
disseminate sex-related information. Id. at 1, 4. The
plaintiffs argued that § 28 was unconstitutionally overbroad
because it did not require that a defendant know that the
intended recipient of the harmful matter was a minor. Id. at 4-
5. The plaintiffs reasoned that those who disseminate "sexually
frank" information through a generally accessible Web site
cannot verify the age of every individual who accesses their Web
site; therefore, they cannot prevent minors from viewing
information that might be harmful to them but appropriate for
adults, without significantly limiting adults from accessing
this information. Id. at 4, 5 n.3. The Commonwealth agreed
                                                                   8



    The defendant contends that until § 28 was amended to

require, as an element of the offense, that the defendant

disseminated the harmful matter to a person "he knows or

believes to be a minor," the statute was substantially overbroad

in violation of the First Amendment to the United States

Constitution and art. 16 of the Massachusetts Declaration of

Rights.   "The First Amendment doctrine of substantial

overbreadth . . . is predicated on the danger that an overly

broad statute, if left in place, may cause persons whose

expression is constitutionally protected to refrain from

exercising their rights for fear of criminal sanctions"

(citations omitted).   Massachusetts v. Oakes, 491 U.S. 576, 581

(1989) (opinion of O'Connor, J.).   Although the defendant does

not contend that he did not know that the victims were minors,

he need not do so in order to challenge the constitutionality of

the statute, because the overbreadth doctrine "is an exception

to the general rule that a person to whom a statute may be

constitutionally applied cannot challenge the statute on the

ground that it may be unconstitutionally applied to others."



that, if § 28 did not require that the sender know that the
recipient was a minor, the statute would be unconstitutionally
overbroad. Id. at 5. The judge noted that she could not
construe the statute to require such knowledge as an element of
the offense because "in the absence of an explicit state court
adjudication . . . revision of a state statute by a federal
court would be inappropriate." Id. at 7.
                                                                   9



Id.   See Bulldog Investors Gen. Partnership v. Secretary of the

Commonwealth, 460 Mass. 647, 676 (2011), cert. denied, 132 S.

Ct. 2377 (2012) ("The overbreadth doctrine allows an individual

whose speech may be constitutionally regulated to argue that a

law is unconstitutional because it infringes on the speech of

others").

      The premise underlying the defendant's overbreadth claim is

that § 28 prior to amendment did not require as an element of

the offense that the defendant knew that the recipient of the

harmful matter was a minor.   If that premise is correct, the

statute would be constitutionally suspect because it would chill

the non-obscene, sex-related speech of those who cannot

reasonably ensure that the matter they disseminate will be seen

only by adults.   See Reno v. American Civil Liberties Union, 521

U.S. 844, 875 (1997) (governmental interest "in protecting

children from harmful materials . . . does not justify an

unnecessarily broad suppression of speech addressed to adults"

[citations omitted]).   See also Smith v. California, 361 U.S.

147, 153-154 (1959) (punishing bookseller for possession of

obscene books without knowledge of obscene content would cause

self-censorship and severely limit public access to

constitutionally protected matter, because booksellers are

limited in amount of reading material with which they can
                                                                  10



familiarize themselves and they would grow timid in face of

"absolute criminal liability").

    In determining whether to construe the statute prior to

amendment to require such knowledge, we apply two principles of

statutory construction.    First, "a statute is to be construed

where fairly possible so as to avoid constitutional questions."

United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994).

See Commonwealth v. Disler, 451 Mass. 216, 228 (2008) (it is our

duty to interpret statutes in manner that avoids constitutional

difficulties "if reasonable principles of interpretation permit

it" [citation omitted]).    See also O'Brien v. Borowski, 461

Mass. 415, 422 (2012) ("we have not hesitated to construe

statutory language narrowly to avoid constitutional

overbreadth"); Demetropolos v. Commonwealth, 342 Mass. 658, 660

(1961) ("where a statute may be construed as either

constitutional or unconstitutional, a construction will be

adopted which avoids an unconstitutional interpretation").

    Second, where First Amendment rights are at issue, we

presume "that some form of scienter is to be implied in a

criminal statute even if not expressed."    X-Citement Video,

Inc., 513 U.S. at 69 (construing statute to require knowledge

that performer in visual depiction of sexually explicit conduct

was minor).   See Commonwealth v. Buckley, 354 Mass. 508, 510
                                                                     11



(1968) ("Statutes, purporting to create criminal offences which

may impinge upon the public's access to constitutionally

protected matter . . . , have been construed to require

knowledge by the accused of the facts giving rise to

criminality" [quotation and citation omitted]); Commonwealth v.

Corey, 351 Mass. 331, 332-333 (1966).

     In Corey, 351 Mass. at 334, we applied both of these

principles when interpreting an earlier version of § 28 to

require scienter.7     The defendant was an employee in a Boston

book store who sold a book entitled "Candy" to a seventeen year

old girl who asked for the book by name.     Id. at 332.   The

defendant argued that he could not be convicted under § 28

without evidence that he knew of the allegedly obscene content

of the book; the Commonwealth conceded that it had offered no

such evidence.   Id.    According to the Commonwealth, the absence

of any language in the statute requiring scienter suggested that

the Legislature intended to enact a strict liability criminal

statute, much like it did when it enacted a strict liability




     7
       The relevant portions of the earlier version of § 28 read,
"Whoever sells . . . to a person under the age of eighteen years
a book . . . which is obscene, indecent or impure, or manifestly
tends to corrupt the morals of youth . . . shall be punished
. . . ." Commonwealth v. Corey, 351 Mass. 331, 331 (1966),
quoting G. L. c. 272, § 28, as amended through St. 1959, c. 492,
§ 1.
                                                                  12



criminal statute prohibiting the sale of liquor to minors.     Id.

at 333.

    We acknowledged that the Legislature had the authority in

enacting criminal statutes to define criminal offenses that had

no element of scienter, but also recognized that "a different

situation is presented when the legislation is in an area where

First Amendment rights are involved."   Id.   Where First

Amendment rights are involved, "[t]he [United States]

Constitution requires proof of scienter to avoid the hazard of

self-censorship of constitutionally protected material."     Id. at

332-333, quoting Mishkin v. New York, 383 U.S. 502, 511 (1966).

Thus, if § 28 had no scienter requirement, "booksellers, unable

to familiarize themselves with all the material on their

shelves, would tend to restrict sales to minors to the

relatively few books of which they had some knowledge of the

contents or character.   The result would be an impediment to the

sale to minors not only of unprotected matter but also of that

which is constitutionally protected."   Corey, supra at 334.    We

held that § 28 "must be read as requiring scienter." Id.

    For similar reasons, we now construe § 28 prior to

amendment to require scienter that the recipient was a minor.

If scienter as to the recipient's age were not required, online

booksellers and other Web site administrators who could not
                                                                    13



reasonably identify the age of every person who visits their Web

sites would be discouraged from disseminating material that is

appropriate for adults but harmful to minors.    See State v.

Weidner, 235 Wis. 2d 306, 322 (Wis. 2000) ("By requiring an

[I]nternet user . . . to prove lack of knowledge regarding the

age of the person exposed to material deemed harmful to a child,

the [Wisconsin statute on dissemination of matter harmful to

minors] effectively chills protected [I]nternet communication to

adults").   Thus, interpreting the statute to require knowledge

that the recipient is a minor is necessary to avoid impinging on

public access to constitutionally protected matter.   See Corey,

351 Mass. at 334.

    We interpret § 28 to include an implied element of

scienter, not only to preserve the constitutionality of the

statute, but also to reflect what we understand to be the

legislative intent.    First, we note that the statute explicitly

requires that the defendant have knowledge that the matter

disseminated is harmful to minors.   See G. L. c. 272, § 28, as

appearing in St. 1982, c. 603, § 2 ("Whoever disseminates to a

minor any matter harmful to minors . . . knowing it to be

harmful to minors").   Second, we previously construed § 28 to

require that the act of dissemination be "purposeful or

intentional" rather than inadvertent, even though the statute
                                                                    14



itself did not explicitly state the level of intent necessary to

prove dissemination.    Commonwealth v. Belcher, 446 Mass. 693,

696-697 (2006).    Finally, because § 28 also made it a crime to

possess any matter harmful to minors "with the intent to

disseminate the same to minors," the Legislature likely intended

that same intent be required to criminalize the dissemination of

the same matter.    See X-Citement Video, Inc., 513 U.S. at 72

("the presumption in favor of a scienter requirement should

apply to each of the statutory elements that criminalize

otherwise innocent conduct").

    Where we adopt a limiting construction of a statute to

avoid substantial overbreadth, as we have done here by requiring

scienter that the recipient is a minor, "the statute, as

construed, 'may be applied to conduct occurring prior to the

construction, provided such application affords fair warning to

the defendants.'"    Oakes, 491 U.S. at 584 (opinion of O'Connor,

J.), quoting Dombrowski v. Pfister, 380 U.S. 479, 491 n.7

(1965).   See Osborne v. Ohio, 495 U.S. 103, 119 (1990) ("Courts

routinely construe statutes so as to avoid the statutes'

potentially overbroad reach, apply the statute in that case, and

leave the statute in place").    Here, where there can be no issue

of fair warning, we conclude that § 28 included an implied

scienter requirement before the 2011 amendment made that
                                                                 15



requirement explicit and was therefore not unconstitutionally

overbroad.8



     8
       On appeal, the Commonwealth also argues that the
defendant's overbreadth challenge was rendered moot by the 2011
amendment, even though the amendment was not effective during
the time period covered by the indictment. The Commonwealth's
argument rests on the plurality opinion of Justice O'Connor in
Massachusetts v. Oakes, 491 U.S. 576, 582 (1989), joined by
three other Justices, which concluded that "overbreadth analysis
is inappropriate if the statute being challenged has been
amended or repealed." Justice O'Connor reasoned:

     "Overbreadth is a judicially created doctrine designed to
     prevent the chilling of protected expression. An overbroad
     statute is not void ab initio, but rather voidable, subject
     to invalidation notwithstanding the defendant's unprotected
     conduct out of solicitude to the First Amendment rights of
     parties not before the court. Because the special concern
     that animates the overbreadth doctrine is no longer present
     after the amendment or repeal of the challenged statute, we
     need not extend the benefits of the doctrine to a defendant
     whose conduct is not protected."

Id. at 584. Justice Scalia wrote a separate opinion, Part I of
which was joined by four other Justices, which stated that a
subsequent legislative amendment of a statute does not
"eliminate the basis for the overbreadth challenge." Id. at
585-586. Justice Scalia reasoned:

     "The overbreadth doctrine serves to protect
     constitutionally legitimate speech not merely ex post, that
     is, after the offending statute is enacted, but also ex
     ante, that is, when the legislature is contemplating what
     sort of statute to enact. If the promulgation of overbroad
     laws affecting speech was cost free, as Justice O'Connor's
     new doctrine would make it -- that is, if no conviction of
     constitutionally proscribable conduct would be lost, so
     long as the offending statute was narrowed before the final
     appeal -- then legislatures would have significantly
     reduced incentive to stay within constitutional bounds in
     the first place" (emphasis in original).
                                                               16



    Having construed § 28 prior to amendment to require

knowledge that the recipient of the harmful matter was a minor,



Id. at 586. It was only because Justice Scalia concluded that
the statute prior to amendment was not impermissibly overbroad
that Justice O'Connor's opinion had the five votes necessary to
announce the judgment of the court to vacate the judgment below
and remand for further proceedings. Id. at 585, 588, 590.

     Several circuit courts of the United States Court of
Appeals have agreed that a subsequent amendment of a statute
renders moot an overbreadth defense. See, e.g., National
Advertising Co. v. Miami, 402 F.3d 1329, 1332 (11th Cir. 2005),
cert. denied, 546 U.S. 1170 (2006); Stephenson v. Davenport
Community Sch. Dist., 110 F.3d 1303, 1311-1312 (8th Cir. 1997);
Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th
Cir.), cert. denied, 522 U.S. 860 (1997). Yet, as the defendant
notes, part I of Justice Scalia's opinion was the "only
proposition to which five Members of the Court [had]
subscribed." Oakes, supra at 591 n.1 (Brennan, J., dissenting).
The Supreme Court has explained that where "no single rationale
explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . .'" Marks v. United States, 430 U.S. 188, 193
(1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976).
However, the Court has also acknowledged that this test "is more
easily stated than applied." Nichols v. United States, 511 U.S.
738, 745 (1994). See United States v. Robison, 521 F.3d 1319,
1323-1324 (11th Cir. 2008) ("narrowest grounds" approach does
not make sense where two opinions "simply set forth different
criteria" and one opinion does not constitute subset of broader
opinion). "Since Marks, several members of the Court have
indicated that whenever a decision is fragmented such that no
single opinion has the support of five Justices, lower courts
should examine the plurality, concurring and dissenting opinions
to extract the principles that a majority has embraced"
(emphasis added). United States v. Johnson, 467 F.3d 56, 65
(1st Cir. 2006), cert. denied, 552 U.S. 948 (2007). Because we
construe the statute prior to amendment to be constitutional, we
need not determine the appropriate method of interpreting
fragmented Supreme Court decisions in order to decide whether,
under Oakes, the 2011 amendment of § 28 rendered the defendant's
overbreadth challenge moot.
                                                                   17



we must address whether the defendant's conviction under § 28

can stand where the judge's final instructions to the jury did

not inform them of this element.   See Osborne, 495 U.S. at 118,

citing Shuttlesworth v. Birmingham, 382 U.S. 87, 91-92 (1965)

("where a State Supreme Court narrows an unconstitutionally

overbroad statute, the State must ensure that defendants are

convicted under the statute as it is subsequently construed and

not as it was originally written").   Where, as here, the

defendant did not object to the judge's jury instructions, we

determine whether the absence of such an instruction created a

substantial risk of a miscarriage of justice.   See Belcher, 446

Mass. at 696.   We conclude that there was no such risk in this

case, where the defendant was the uncle of the victim, J.B., and

knew him very well, and where J.B. was well below eighteen years

of age when the defendant showed him the pornographic material.

    2.   Closing argument.   The defendant also contends that the

prosecutor's closing argument improperly suggested that the

defendant would have touched C.J. in the same manner that he

touched J.B. if C.J. had not moved away.   The prosecutor stated:

    "Was [the defendant] able to progress any further than
    touching [C.J.]'s pubic area? No. Why not? Because
    [C.J.] left, that's why. Not because he was done learning
    about sex from his uncle, because he physically moved to
    another state. You heard eighth grade he left. He was in
    Tewksbury for a short amount of time and then New
    Hampshire. At that point they saw each other infrequently,
                                                                   18



    not every day. The access collapsed and his opportunity at
    that point to take it further vanished."

The prosecutor later reemphasized this theory, stating, "Now the

point that [the defendant] got to with [J.B.] shows you exactly

what his intent was when he started with [C.J.].   Due to

circumstances beyond his control, that is a couple of hundred

miles maybe or a state border, he was unable to reach that point

with [C.J.]."

    The defendant contends that the prosecutor's argument

regarding the sexual crimes that the defendant would have

inflicted on C.J. had C.J. not moved was improper because it was

speculative and played on the jury's fear that, if they found

the defendant not guilty, he would "take it further" and commit

more sexual crimes.   See Commonwealth v. Ayoub, 77 Mass. App.

Ct. 563, 569 (2010) (statements that "invited speculation about

offenses uncommitted and . . . uncharged" are imprudent).

Because the defendant failed to object to the closing argument,

we review whether the prosecutor's argument created a

substantial risk of a miscarriage of justice.   See Commonwealth

v. Renderos, 440 Mass. 422, 425 (2003).

    The prosecutor's remarks were improper in that they

suggested that had C.J. not moved away, the defendant might have

committed additional sexual offenses against him, which invited

the risk that the jury would divert their focus from the
                                                                  19



evaluation of the evidence regarding the defendant's alleged

crimes, and consider instead what the defendant might have done

under different circumstances.   A prosecutor may make reasonable

inferences as to what might have actually happened during the

commission of the alleged crimes, but may not argue what might

have happened had the victim not moved away.

    The challenged remarks, however, followed the defendant's

closing argument, and must be evaluated in that context.    See

Renderos, 440 Mass. at 425 (prosecutor's remarks evaluated in

context of entire closing argument, judge's instructions of law,

and evidence at trial); Commonwealth v. Grandison, 433 Mass.

135, 143 (2001) (prosecutor may fairly respond to defendant's

closing argument).   In his closing argument, the defendant's

trial counsel contended that the defendant was "trying to

introduce these young men to this whole idea of sexual

development, maturity, puberty and everything that goes along

with sex education," albeit in a clumsy manner, and therefore

"[n]one of these events were [sic] indecent."   The prosecutor

countered that the defendant's touching of the victims was not

for the purpose of their sex education, but for his own sexual

gratification and that the defendant took advantage of the trust

he had built with the victims.   In this context, a reasonable

jury were more likely to have understood the prosecutor's
                                                                  20



statements that suggested what the defendant might have done,

had C.J. not moved away, as commentary on the intent of the

defendant's earlier touching of C.J., rather than on the

defendant's future sexual dangerousness.   The prosecutor's

statement, "[T]he point that [the defendant] got to with [J.B.]

shows you exactly what his intent was when he started with

[C.J.]," directed the jury to consider the defendant's conduct

with J.B. in evaluating the defendant's intent in touching C.J.

Having considered the prosecutor's improper statements in the

context of the closing arguments and recognizing the strength of

the evidence against the defendant, we conclude that there was

no substantial risk of a miscarriage of justice.

    Conclusion.   Because G. L. c. 272, § 28, was constitutional

at the time of the defendant's charged conduct, and the

prosecutor's closing argument did not create a substantial risk

of a miscarriage of justice, we affirm the defendant's

convictions.

                                   So ordered.
