Commonwealth v. Jones, 28 N.E.3d 391

Background

Defendant (his nephews' uncle) was convicted of two counts of indecent assault and battery on a child under 14 and one count of dissemination of matter harmful to minors (G. L. c. 265, § 13B; G. L. c. 272, § 28). Convictions affirmed by SJC.
Victim J.B. (≈9–12) was shown pornography on the defendant’s computer and was digitally stroked; other victim C.J. (≈11–13) was repeatedly asked to expose his genitals and had his pubic region touched (no penetration).
At the time of the conduct, § 28 criminalized disseminating to a minor matter harmful to minors knowing it to be harmful (but did not explicitly state that the defendant must know the recipient’s age); the statute was later amended in 2011 to require the sender "knows or believes" the recipient is a minor.
Defendant argued § 28 was facially overbroad because it lacked a scienter element as to the recipient’s minority, chilling protected speech; trial judge did not instruct jury on such scienter and prosecutor made challenged closing remarks.
SJC construed pre‑amendment § 28 to include an implied scienter requirement (knowledge that recipient is a minor), held the statute therefore not unconstitutionally overbroad, and ruled the prosecutor’s closing argument improper but harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pre‑2011 G. L. c. 272, § 28 was facially overbroad for lacking an explicit requirement that defendant know recipient was a minor	Commonwealth: statute constitutional as applied; post‑amendment clarity not necessary for conviction	Jones: statute overbroad under First Amendment because it did not require knowledge recipient was a minor, chilling adult‑oriented speech	Court: § 28 must be read to include implied scienter (knowledge recipient is a minor); not unconstitutionally overbroad
Whether the jury instructions’ omission of the scienter element created a miscarriage of justice	Commonwealth: evidence showed defendant knew victims and their ages; omission harmless	Jones: absence of instruction deprived jury of required element	Held: No substantial risk of miscarriage of justice given relationship and ages; conviction stands
Whether prosecutor’s closing argument improperly invited speculation about uncharged or future crimes	Commonwealth: remarks responded to defense and focused on intent, not future dangerousness	Jones: prosecutor speculated defendant would have escalated abuse of C.J. had C.J. not moved, improperly inflaming jury	Held: Remarks improper but, viewed in context of defense argument and strong evidence, not a substantial risk of miscarriage of justice
Whether the 2011 amendment to § 28 moots an overbreadth challenge to the earlier statute	Commonwealth: amendment renders challenge moot	Jones: pre‑amendment statute governs charged conduct; challenge still valid	Held: Court avoids deciding mootness; construes earlier statute as constitutional so challenge fails on merits

Key Cases Cited

United States v. X‑Citement Video, Inc., 513 U.S. 64 (1994) (presume scienter in statutes affecting sexual material to avoid chilling speech)
Commonwealth v. Corey, 351 Mass. 331 (1966) (Massachusetts construed § 28 to require scienter regarding obscene content)
Massachusetts v. Oakes, 491 U.S. 576 (1989) (discussion of overbreadth and effect of subsequent legislative amendment)
Osborne v. Ohio, 495 U.S. 103 (1990) (courts may construe statutes narrowly to avoid overbreadth and apply that construction retroactively when fair warning exists)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (protecting adults’ access to sexual material cannot be unduly chilled by overbroad child‑protection statutes)
Smith v. California, 361 U.S. 147 (1959) (strict liability for possession of obscene materials chills distribution and access to protected speech)