SPINA, J.
Following a jury trial in the Superior Court in December, 2008, the defendant, Joseph D. Sullivan, was convicted of attempted kidnapping, G. L. c. 274, § 6, and of accosting or annoying a person of the opposite sex, G. L. c. 272, § 53.
The Appeals Court affirmed the judgment on the indictment charging attempted kidnapping, concluding that the Commonwealth had proved all the required elements of the offense. Commonwealth v. Sullivan, 84 Mass.App.Ct. 26, 28-30, 32 (2013). On the indictment charging accosting or annoying a person of the opposite sex, the Appeals Court reversed the judgment, set aside the verdict, and entered judgment for the defendant. Id. at 30-32. It concluded that because the Commonwealth had not demonstrated that the defendant's conduct involved "sexually explicit language
1. Background. The facts as they properly could have been found by the jury are concisely set forth in the decision of the Appeals Court. See Commonwealth v. Sullivan, 84 Mass. App. Ct. at 27-28. We reiterate the essential details.
At approximately 9:30 P.M. on September 28, 2007, R.M. was walking alone on Massachusetts Avenue in Cambridge. She was returning to her dormitory on the Massachusetts Institute of Technology campus after a tae kwon do class. The operator of a motor vehicle traveling on Massachusetts Avenue, whom R.M. later identified from a photographic array as the defendant, swerved toward her and stopped on the side of the road. R.M. thought that he was going to ask for directions, so she took a step toward the vehicle. The defendant rolled down the window and said, "Hey little girl, you look so tired. Come on over. Talk to me. Let's, you know, let's talk." R.M. described the pitch of his voice as "much higher than his normal tone of voice, more like, well, what you use to bribe someone." She stepped back from the vehicle and started walking away because she "didn't want to have anything to do with that situation." The defendant then got out of his vehicle while the engine was still running, and he walked toward R.M., asking her to come over and speak with him. R.M. declined to engage him in conversation and attempted to move away. The defendant came closer, causing R.M. to angle her body to avoid touching him. Eventually, R.M. managed to continue on her way, the defendant returned to his vehicle, and he drove away. The encounter, however, did not end there.
Apparently changing his mind about heading toward Boston, the defendant suddenly reversed his direction and followed R.M. in his vehicle as she turned onto Landsdowne Street, which at the time was dimly lit and devoid of other pedestrians. When he
2. Standard of review. Because the defendant has challenged the sufficiency of the evidence, we consider whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). A conviction may rest on circumstantial evidence alone, and the inferences drawn by a jury from the relevant evidence "need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Longo, 402 Mass. 482, 487 (1988), quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980). The existence of conflicting evidence does not mandate a required finding of not guilty, see Commonwealth v. Merry, 453 Mass. 653, 662 (2009), and we do not weigh supporting evidence against conflicting evidence when considering whether the jury could have found each element of the charged crime. See id. at 660, citing Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
3. Sufficiency of the evidence. General Laws c. 272, § 53, as amended through St. 1983, c. 66, § 1, states, in relevant part: "[P]ersons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex ... may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or
As to the first element of the crime, we have said that "offensive" acts or language "are those that cause `displeasure, anger or resentment; esp., repugnant to the prevailing sense of what is decent or moral.'" Commonwealth v. Cahill, 446 Mass. at 781, quoting Black's Law Dictionary 1113 (8th ed. 2004) (defendant's act of grabbing victim from behind "really tight" around shoulders, at mutual place of business while she was helping customers, when viewed in context of defendant's other workplace behavior toward victim, was offensive within meaning of G. L. c. 272, § 53). See Commonwealth v. Moran, 80 Mass.App.Ct. 8, 10 (2011), quoting Commonwealth v. Cahill, supra (fact finder could conclude that defendant's act of calling out to victim while passing within arm's reach, grabbing genital area of trousers, and mimicking masturbation constituted conduct "repugnant to the prevailing sense of what is decent or moral"); Commonwealth v. Whiting, 58 Mass.App.Ct. 918, 920 (2003) (evidence sufficient to support conviction of accosting or annoying person of opposite sex where defendant used sexually explicit language toward teenage girls, stepped out of vehicle, and pulled down pants, causing girls to fear that defendant would hurt them). Thus, "offensive" acts or language cause a complainant to feel displeasure, anger, resentment, or the like, and such acts or language would be considered indecent or immoral by a reasonable person.
We interpret the "offensive" acts or language element of G. L.
Our interpretation is supported by the sexually dangerous person statute, which, in 2004, added the crime of accosting or annoying persons of the opposite sex to the definition of "[s]exual offense." G. L. c. 123A, § 1, as amended through St. 2004, c. 66, § 5. To conclude that G. L. c. 272, § 53, also encompasses nonsexual behavior would result in absurd and unfair consequences. For example, a defendant convicted of accosting or annoying a person of the opposite sex based on acts or language that were not sexual could nonetheless face civil commitment as a sexually dangerous person due to the classification of this crime as a "sexual offense" under G. L. c. 123A, § 1. See Commonwealth v. Irene, 462 Mass. 600, 610, cert. denied, 133 S.Ct. 487 (2012), quoting Manning v. Boston Redev. Auth., 400 Mass. 444, 453 (1987) ("Statutes that relate to the same subject matter are not to be construed `in a way that produces absurd or unreasonable results when a sensible construction is readily available'"). That the Legislature classified the crime of accosting or annoying a person of the opposite sex as a sexual offense under the sexually dangerous person statute supports our conclusion that the Legislature intended the crime of accosting or annoying to require proof of sexual conduct or language.
As to the second element of the crime, "disorderly" acts or language "are those that involve fighting or threatening, violent or tumultuous behavior, or that create a hazardous or physically offensive condition for no legitimate purpose of the actor, whether the resulting harm is suffered in public by the public or in private by an individual." Commonwealth v. Chou, 433 Mass. at 233. See Commonwealth v. Cahill, 446 Mass. at 779, 781-783 (defendant's workplace behavior in forcing unwanted attention on victim, repeatedly
As to "disorderly" acts or language that are threatening, we have recognized that "[s]exually explicit language, when directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress, may be inherently threatening." Commonwealth v. Chou, 433 Mass. at 234-235 (defendant's act of posting flyers in high school containing sexually explicit and aggressive language directed at female student was threatening and, therefore, disorderly within meaning of G. L. c. 272, § 53). Further, we have explained that "language properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response." Id. at 234. See Commonwealth v. Moran, 80 Mass. App. Ct. at 10 (defendant's spontaneous suggestion of sexual activity delivered at close quarters but not
We conclude that, after viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the elements of accosting or annoying a person of the opposite sex beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. at 677. First, with respect to "offensive" acts or language, the circumstances surrounding the defendant's interactions with R.M. were such that a reasonable person would be upset, as R.M. was, and could legitimately construe the defendant's behavior as implicitly suggesting an imminent sexual assault. R.M. was a young woman walking back to her dormitory alone around 9:30 P.M. on a September evening. When she initially encountered the defendant, he called her "little girl" and beckoned her to his car, using a high pitched tone of voice, so they could "talk." Not wanting to have anything to do with the defendant, R.M. started to walk away, but the defendant got out of his vehicle and pursued R.M., continuing to say, "Hey little girl, come on over," until he was finally standing within an arm's length of her.
Next, with respect to "disorderly" acts or language, the circumstances surrounding the defendant's interactions with R.M. were such that a reasonable person would construe the defendant's
4. Ineffective assistance of counsel. Pertaining to his conviction of accosting or annoying a person of the opposite sex under G. L. c. 272, § 53, the defendant also contends that the performance of his trial counsel was deficient in two respects. Both arguments are unpersuasive.
Counsel is ineffective when his or her performance falls "measurably below that which might be expected from an ordinarily fallible lawyer," and the substandard performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Claims of ineffective assistance of counsel typically should be raised, as they were here, in a motion for a new trial, where "an appropriate factual record can be developed." Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). See note 4, supra. We review the denial of a motion for a new trial "only to determine whether there has been a significant error of law or other abuse of discretion.... When, as here, the motion judge did not preside at trial, ... we regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden of establishing both prongs of the Saferian test. See Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002).
It is well established that due process requires that criminal statutes that are not "sufficiently explicit to give clear warning as to proscribed activities" be declared unconstitutional. Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). See Commonwealth v. Reyes, 464 Mass. 245, 248-249 (2013), and cases cited. However, "legislative language need not be afforded `mathematical precision' in order to pass constitutional muster." Id. at 249, quoting Commonwealth v. Bohmer, 374 Mass. 368, 372 (1978). A statute is not vague "if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning." Commonwealth v. Orlando, supra. A sufficiently definite warning about what conduct has been made criminal "may be achieved by the common law meaning or statutory history of particular terms." Commonwealth v. Balthazar, 366 Mass. 298, 300 (1974). See Commonwealth v. Reyes, supra.
As the motion judge correctly determined, G. L. c. 272, § 53, is not unconstitutionally vague because in order for accosting or annoying behavior to be criminal, it must be both "offensive" and "disorderly," and those terms have been defined and explained in our jurisprudence. See, e.g., Commonwealth v. Cahill, 446 Mass. at 781-783; Commonwealth v. Chou, 433 Mass. at 231-235. Put slightly differently, an individual who has engaged in offensive and disorderly acts or language toward a person of the opposite sex has accosted or annoyed that person. We conclude that trial counsel was not ineffective for failing to challenge the constitutionality of G. L. c. 272, § 53, in a motion to dismiss.
The defendant also argues that his trial counsel was ineffective because he failed to object to the judge's instruction on "accosting."
Although the judge did not give the entire definition of "disorderly" acts or language as articulated in Commonwealth v. Chou, supra, he gave the portion of the definition that was applicable to the evidence presented at trial. As we have discussed, the defendant's interactions with R.M. were such that a reasonable person would construe the defendant's behavior as creating a "physically offensive condition for no legitimate purpose." Commonwealth v. Chou, supra. The judge's failure to itemize all the alternative theories of the crime that had no application to this case was not error. We conclude that the defendant has not shown that trial counsel's failure to object to the judge's instruction on "disorderly" acts constituted ineffective assistance.
5. Conclusion. The judgment of conviction on the indictment
So ordered.