Commonwealth v. O'Keefe

723 N.E.2d 1000, 48 Mass. App. Ct. 566, 2000 Mass. App. LEXIS 80
CourtMassachusetts Appeals Court
DecidedFebruary 17, 2000
DocketNo. 98-P-354
StatusPublished
Cited by10 cases

This text of 723 N.E.2d 1000 (Commonwealth v. O'Keefe) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. O'Keefe, 723 N.E.2d 1000, 48 Mass. App. Ct. 566, 2000 Mass. App. LEXIS 80 (Mass. Ct. App. 2000).

Opinion

Rapoza, J.

The defendant is alleged to have placed three sexually explicit notes inside a book in the classroom desk of a fifth grade student. The hand-lettered notes contained graphic sexual questions and offered the boy money to engage in various sexual acts. Four quarters were attached to one of the notes, and a dollar bill to another.

A complaint filed in the District Court charged the defendant with offering to engage in sexual conduct for a fee, G. L. c. 272, § 53A, and disseminating matter harmful to a minor, G. L. c. 272, § 28. Prior to trial, the District Court judge reported the following question to us pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979): “Whether nonprinted and nonmass produced letters constitute ‘material’ as defined by G. L. c. 272, § 31.”

The reported question concerns the charge under G. L. c. 272, § 28, as appearing in St. 1982, c. 603, § 2, which prohibits the [567]*567dissemination of “matter” harmful to minors.1 Section 31 of c. 272, as appearing in St. 1974, 430, § 12, defines “matter” for purposes of the obscenity statutes, §§ 28-30D,2 as “any printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.”

The defendant contends that the word “printed” in the phrase “printed material” refers only to machine-produced documents, and that the handwritten notes at issue are not covered under the statute. The Commonwealth contends that the Legislature was more concerned with content than with the medium of expression in the obscenity statutes. Pointing to the extensive list of items defined as “matter” in § 31, it argues that “printed material” should be more broadly construed to include handwritten documents.

We begin mindful of the well-established proposition that criminal statutes “must ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.’ Commonwealth v. Triplett, [426 Mass.] 26, 29 (1997), quoting Commonwealth v. Twitchell, 416 Mass. 114, 123 (1993). Therefore, criminal statutes are strictly construed against the government.” Commonwealth v. Richards, 426 Mass. 689, 690 (1998).

“Printed material” is not defined in § 31.3 “In the absence of a statutory definition of [‘printed material,’] we first look to [its] usual and accepted meaning. . . . We derive such meaning ‘from sources presumably known to the statute’s enactors, such as [the term’s] use in other legal contexts and dictionary definitions.’ ” Commonwealth v. Davie, 46 Mass. App. Ct. 25, 28 (1998), quoting from Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977), and citing 2A Sutherland Statutory Construction § 46.04 (5th ed. 1992 & Supp. 1998).

Webster’s Third New Intl. Dictionary 1803 (1993) provides [568]*568two definitions of the verb “print” relevant to § 31: (1) “[T]o make a copy of by impressing paper against an inked printing surface or by an analogous method”; and (2) “[T]o form manually in unjoined characters resembling those of ordinary type.” The first definition refers to mechanically produced material. The second refers to handwritten material, but is limited to writing that resembles mechanically printed type.

We conclude that the first definition of “print” is the correct one for purposes of § 31. We reject the second definition because it could potentially lead to a senseless result. If “print” were so construed, the statute would apply to documents hand lettered in unjoined characters, but not to documents written in a cursive hand. We do not adopt a statutory construction leading to an “absurd and unreasonable conclusion” where the statutory “language is fairly susceptible to a construction that would lead to a logical and sensible result.” McCarthy v. Woburn Hous. Authy., 341 Mass. 539, 542 (1960), quoting from Bell v. Treasurer of Cambridge, 310 Mass. 484, 489 (1941).

The Legislature’s use of the term “print” in other sections of c. 272, as well as in other Massachusetts statutes, adheres to the lexical meaning we have adopted. Forms of the word “print” appear in several sections of c. 272. There they are distinguished from forms of the word “write”4 by the term “or.” See § 21 (“writes, prints, or causes to be written or printed”); § 92A (“written or painted or printed notice or sign”); § 98C (“written or printed material”). “The word ‘or’ is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise.” Commonwealth v. Davie, 46 Mass. App. Ct. at 27, quoting from Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 212 (1995), and Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Authy., 350 Mass. 340, 343 (1966), and citing 1A Sutherland Statutory Construction § 21.14 (5th ed. 1992 & Supp. 1998).

Other Massachusetts statutes similarly distinguish hand-lettered “written” material from mechanically produced “printed” material. See, e.g., G. L. c. 233, § 79E (“memorandum, writing entry, print, representation or combination thereof”); c. 64H, § 1 (“written or printed matter”); c. 265, § 25 (“written or printed communication”); c. 271, § 39(b) (“written or printed [569]*569communication”); c. 264, § 11 (“written or printed document”).5 “Sound principles of statutory construction dictate that interpretation of provisions having identical language be uniform.” Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401, 403 (1986), quoting from Webster v. Board of Appeals of Reading, 349 Mass. 17, 19 (1965), and authorities cited.6

The dictionary definition of “print,” the distinction between printed and written material appearing in other legal contexts, and the admonition that we must interpret criminal statutes narrowly against the Commonwealth, all compel us to reject the Commonwealth’s contention that we should construe “printed material” as encompassing handwritten documents for purposes of § 31.7

The Legislature has carefully considered the language used in the obscenity statutes. In 1974 it revised the statutory scheme extensively,8 rewriting §§ 28 and 31 and inserting in the latter definitions of operative terms. Prior to 1974, the items covered by § 28 were listed serially. The fist consisted of specific items, followed by a general term: “book, pamphlet, ballad, printed paper, phonographic record or other thing.” When elements are listed in such a series, rules of statutory construction require the general phrase to be construed as restricted to elements similar [570]*570to the specific elements listed. See Santos v. Bettencourt, 40 Mass. App. Ct. 90, 92 (1996), and authorities cited; Dickson v. Riverside Iron Works, Inc., 6 Mass. App. Ct. 53, 55-56 (1978), quoting from 2A Sands, Sutherland Statutory Construction § 47. 17 (4th ed. 1973). This land of listing can lead to difficulty in ascertaining the precise meaning of the general term. See Santos v. Bettencourt, supra

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723 N.E.2d 1000, 48 Mass. App. Ct. 566, 2000 Mass. App. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-okeefe-massappct-2000.