Commonwealth v. Brown , 481 Mass. 77 ( 2018 )

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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.
22
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
23
(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.