Commonwealth v. Jenkins

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22-P-208 Appeals Court

COMMONWEALTH vs. JOSHUA Y. JENKINS.

No. 22-P-208.

Plymouth. July 6, 2023. – July 8, 2024.

Present: Sacks, Grant, & Smyth, JJ.

Trafficking. Practice, Criminal, Motion to suppress, Admissions
and confessions. Evidence, Admissions and confessions.
Constitutional Law, Admissions and confessions, Reasonable
suspicion. Search and Seizure, Reasonable suspicion.

Indictments found and returned in the Superior Court
Department on June 22, 2018.

A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J.; a motion for reconsideration was
heard by him; and the cases were tried before William F.
Sullivan, J.

Thomas J. Gleason for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.

GRANT, J. Convicted by a Superior Court jury of

trafficking for sexual servitude, G. L. c. 265, § 50 (a), the
2

defendant appeals.1 He argues that the motion judge erred in

denying his motion to suppress his statement to police, and that

the evidence at trial was insufficient to prove that while in

Massachusetts he committed conduct prohibited by the sex

trafficking statute. We affirm.

Background. Based on the evidence at trial, the jury could

have found as follows. In early 2018, the defendant met the

victim at an apartment complex in Plymouth. The victim had just

been released from jail and was using heroin and "crack"

cocaine. In text messages, the defendant told the victim of his

idea to go to Las Vegas to make money. In text messages between

February 19 and 23, 2018, the defendant told the victim that he

was in Plymouth, promised to pay for her plane ticket to Nevada,

and explicitly described the sex acts she would perform there

and the amounts she would charge. In a text message on February

23, the defendant told the victim that he had arrived in Nevada.

In subsequent text messages, the defendant told the victim that

he had booked her flight from Boston to Las Vegas, instructed

her how to get to Logan Airport, and again described the sex

acts that he expected her to perform in Nevada and the prices

1 At the request of the Commonwealth, a charge of resisting
arrest was dismissed. The trial judge allowed a required
finding of not guilty on a charge of unarmed robbery, and the
jury acquitted the defendant of assault and battery.
3

she would charge. On February 24, the victim traveled from

Plymouth to Las Vegas; she had never been on a plane before.

On March 6, 2018, the defendant and the victim were back at

the apartment complex in Plymouth, where there was an

altercation between them. In an interview that afternoon, the

defendant told Plymouth police Detective Gregory Smith that the

victim was already working as a prostitute when she approached

him about working together, and she followed him to Las Vegas

voluntarily. He admitted that he bought the victim's plane

ticket from Boston to Las Vegas. The defendant also admitted

that he agreed to "help" the victim, that he "sent for her" to

come to Las Vegas, and that the proceeds were "supposed to be

split" "on a business level."

The defense theory was that the Commonwealth did not prove

that the defendant enticed, recruited, or transported the victim

to engage in commercial sexual activity. In closing, defense

counsel argued that the defendant was credible when he told

police that it was the victim's idea to go to Las Vegas, and so

he did not entice her; he did not recruit her because she was

already working as a prostitute, and instead, "she recruited

him"; and merely by paying for her plane ticket he did not

transport her, as would a "pimp" who "drives [prostitutes] to

their dates." As to the defendant's admission to Detective

Smith that the proceeds were "supposed to be split," counsel
4

argued that the Commonwealth did not prove that the defendant

and the victim made that agreement while in Massachusetts. The

jury convicted the defendant of trafficking for sexual

servitude, and this appeal ensued.

Discussion. 1. Motion to suppress statements. The

defendant moved to suppress evidence and statements, arguing

that police obtained them as the result of an unlawful stop.

After an evidentiary hearing at which Plymouth police Officer

Derek Back testified, the motion judge initially allowed the

motion to suppress, concluding that police did not have

reasonable suspicion to stop the defendant.2 The Commonwealth

moved to reconsider, and the motion judge reopened the hearing

with respect to suppression of the defendant's statements. At a

second hearing, Detective Smith testified. The motion judge

then reconsidered his ruling and denied the motion to suppress

as to the statements.

The defendant argues that the motion judge erred in denying

the motion to suppress after finding that the defendant's

statements to Detective Smith were sufficiently attenuated from

the unlawful stop. We review the motion judge's findings of

fact to determine if they are clearly erroneous, but "review

without deference the [motion] judge's application of the law to

2 The motion judge was not the trial judge.
5

the facts as found." Commonwealth v. Johnson, 473 Mass. 594,

602 (2016). See Commonwealth v. Forbes, 85 Mass. App. Ct. 168,

170 n.2 (2014).

a. Facts found by motion judge. We summarize the facts

found by the motion judge based on evidence at both hearings,

supplemented by our own review of the documentary evidence

including the video recording of the defendant's interview. In

late February 2018, the victim's mother and sister came to the

Plymouth police station and reported to Detective Smith their

concerns about the victim being subjected to sex trafficking.

In his subsequent investigation, Detective Smith determined the

location of the victim's cell phone and learned that she was in

Texas, traveling toward Houston. Based on an alert from

Detective Smith, Texas police stopped a car in which the victim

and the defendant were riding. The victim returned to

Massachusetts, where Detective Smith tried unsuccessfully to

contact her.

On March 6, 2018, in the Plymouth apartment complex,

Officer Back and his partner saw the victim visibly upset and

crying. The victim reported that someone had tried to beat her

up and stolen her cell phone. She described her assailant as a

Black man wearing "some gay-ass sweater" and told the officers

the man's apartment number. Heading in that direction, the

officers encountered a car being driven toward them by a man
6

later identified as the defendant, who was wearing what Officer

Back described as "a very colorful, bright, and boisterous

sweater."3 The officers stopped the car. During a patfrisk of

the defendant, police found two cell phones, one of which the

victim identified as hers. Police arrested the defendant for

unarmed robbery.

Detective Smith heard a radio broadcast about that incident

and recognized the defendant's and victim's names from his

ongoing sex trafficking investigation. Detective Smith went to

the apartment complex and found the victim, who agreed to come

to the police station where she was interviewed by Detective

Smith. After that interview, Detective Smith approached the

defendant and asked if he would submit to an interview; the

defendant agreed and was escorted to an interview room several

hours after his arrest. After waiving his Miranda rights, the

defendant made the incriminating statements admitted at trial.

The motion judge ruled that the stop was unlawful because

Officer Back did not have reasonable suspicion to stop the

defendant's car based on information including the victim's

description of her assailant's sweater, which the judge found

3 A photograph of the defendant wearing the sweater was
marked as an exhibit at the suppression hearing. The defendant
has not included a copy of the photograph in the record appendix
on appeal. The motion judge found that the sweater has
"colorful, horizontal stripes embroidered with a pattern that
eludes easy description."
7

was "subjective" and "could have equally applied to many other

types of sweaters."4 However, on reconsideration, the motion

judge ruled that any taint from the unlawful stop had dissipated

by the time the defendant made the statements, and so their

suppression was not required.

b. Attenuation. Whether a defendant's admission is

sufficiently attenuated from a preceding unlawful arrest depends

on the facts of the case assessed under four factors: "(1) the

temporal proximity of the admission to the arrest; (2) the

presence of intervening circumstances between the arrest and the

admission; (3) the observance of the Miranda rule subsequent to

the unlawful arrest; and (4) the purpose and flagrancy of the

official misconduct." Commonwealth v. Damiano, 444 Mass. 444,

455 (2005), citing Kaupp v. Texas, 538 U.S. 626, 633 (2003). It

is the Commonwealth's burden to prove that the subsequent

admission "is sufficiently attenuated from the underlying

illegality so as to be purged from its taint." Commonwealth v.

Fredericq, 482 Mass. 70, 78 (2019), quoting Damiano, supra at

454.

Neither party argues about the judge's rulings that the
4

stop was unlawful and, as a result, that the evidence seized
from the defendant (other than his statements to Detective
Smith) must be suppressed. Thus we do not consider those
issues.
8

As to the first factor, the judge found that the temporal

attenuation between the unlawful stop and the defendant's

admission to Detective Smith was "relatively brief, no more than

a few hours." We agree with the motion judge that the brief

amount of time that had passed is not necessarily dispositive.

"[I]n some circumstances, a lapse of time of as little as three

hours from the illegal [arrest] to the decision to speak with

police may be enough to dissipate the taint." Commonwealth v.

Long, 476 Mass. 526, 537 (2017). See Commonwealth v. Sylvia,

380 Mass. 180, 184 (1980) (one and one-half hour interval

sufficient).

As to the second Damiano factor, the presence of

intervening circumstances, the judge concluded that Detective

Smith's ongoing sex trafficking investigation was such a

circumstance, "particularly given that [the victim], only

minutes before, had provided Detective Smith with additional

information pertaining to that investigation." The defendant

contends that the sex trafficking investigation "was not

intervening" because it predated the unlawful stop. That

contention ignores that the victim's cooperation with Detective

Smith's investigation contributed to the intervening

circumstance. In talking to Detective Smith, the defendant

initially denied any involvement with commercial sexual

activity, but once confronted with information the detective had
9

gathered in his investigation, including from the victim, the

defendant made his damaging admissions. See Commonwealth v.

Cruz, 442 Mass. 299, 307 (2004) (intervening circumstance was

confrontation of defendant with fact that witness implicated

him); Commonwealth v. Chongarlides, 52 Mass. App. Ct. 366, 376

(2001) (intervening circumstance was defendant's learning that

witness implicated him).

As to the third Damiano factor, police adherence to the

Miranda rule, the defendant conceded at the suppression hearing

and again at oral argument that police abided by the

requirements of Miranda. On appeal, the defendant does not

argue that police committed any misstep with regard to his

Miranda rights that would preclude application of the

attenuation doctrine. Based on our own review of the video

recording of the interview, we would see no merit to any such

claim. Although police adherence to Miranda would not alone

dissipate any taint from the unlawful stop, see Fredericq, 482

Mass. at 80-81, adherence is one factor that weighs in favor of

dissipation.

Finally, as to the fourth Damiano factor, the motion judge

concluded that the officers' conduct in stopping the defendant

was not done for the purpose of obtaining his statement about

the sex trafficking investigation, nor was the officers' conduct

"flagrant." The motion judge found that the officers' decision
10

to stop the defendant "was largely a judgment call." The motion

judge based that finding in part on his viewing the photograph

of the defendant's sweater, see note 3, supra, and concluding

that the officers did not engage in flagrant misconduct when

they deemed that the sweater fit the victim's description. The

defendant does not argue that the judge erred in so concluding.

Cf. Commonwealth v. Jones, 95 Mass. App. Ct. 641, 650 (2019)

(patfrisk of defendant based on hunch, though "legally

insufficient," "was not flagrant misconduct in the aftermath of

a fatal shooting").

2. Sufficiency of the evidence. The jury convicted the

defendant on a single indictment that alleged sex trafficking,

G. L. c. 265, § 50 (a), of a single victim in Plymouth County on

or about February 24, 2018. The defendant argues that the jury

did not hear sufficient evidence to prove that he committed that

crime in Massachusetts.5 We consider the evidence in the light

most favorable to the Commonwealth to determine if it "could

have satisfied a rational trier of fact of each . . . element

5 Before trial, the defendant moved twice to dismiss the
indictment, first for lack of jurisdiction and then for lack of
venue. Judges denied those motions, and the prosecutor
commented during trial that the Commonwealth had obtained leave
to proceed under G. L. c. 277, § 57A. On appeal, the defendant
does not raise the propriety of the denials of his motions to
dismiss or the Commonwealth's authority to proceed under § 57A,
and so we do not consider those issues.
11

beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass.

671, 677-678 (1979).

To prove that the defendant violated the sex trafficking

statute, the Commonwealth was required to establish that he

"knowingly . . . subject[ed], or attempt[ed] to subject, or
recruit[ed], entice[d], harbor[ed], transport[ed],
provide[d] or obtain[ed] by any means, or attempt[ed] to
recruit, entice, harbor, transport, provide or obtain by
any means, [the victim] to engage in commercial sexual
activity . . . or cause[d] [the victim] to engage in
commercial sexual activity."

G. L. c. 265, § 50 (a) (i). Focusing on several of those verbs,

the defendant contends that he did not recruit or entice the

victim to engage in commercial sexual activity because she had

already worked as a prostitute, nor did he transport her by

buying her a plane ticket from Boston to Las Vegas because he

was already in Nevada when that transaction occurred.6 Because

the defendant's contentions rest on a view of the evidence that

is not in the "light most favorable to the Commonwealth"

6 The defendant did not request a specific unanimity
instruction as to which of those verbs were the acts he
committed. Although we need not decide the issue here, we note
that such an instruction is not required where the
Commonwealth's theory is that a defendant's sex trafficking was
a "continuing course of conduct" or "a single criminal scheme or
plan carried out consistently over time." Commonwealth v. Fan,
490 Mass. 443, 450 (2022), quoting Commonwealth v. Santos, 440
Mass. 281, 285-286 (2003), overruled on other grounds by
Commonwealth v. Anderson, 461 Mass. 616, cert. denied, 568 U.S.
946 (2012).
12

(citation omitted), Latimore, 378 Mass. at 676-677, we are not

persuaded.

The victim testified that while in Massachusetts the

defendant told her of his plan to traffic her for sex. In text

messages to the victim, the defendant explicitly described the

sex acts he expected her to perform and the amounts she would

charge. By text message, the defendant sent to the victim the

plane ticket for her to travel from Boston to Las Vegas. Merely

because the defendant sent some of those text messages,

including the one transmitting the plane ticket, to the victim

in Massachusetts after he said in a February 23 text message

that he had arrived in Nevada did not diminish the

Commonwealth's proof.7 Those text messages and that transaction

were part of the defendant's ongoing "single criminal scheme" to

traffic the victim for sex. Commonwealth v. Fan, 490 Mass. 443,

451 (2022). See Commonwealth v. Lowery, 487 Mass. 851, 867-868

7 The defendant moved in limine to exclude evidence of text
messages and subsequent bad acts, arguing that "the moment that
[the defendant] gets on the plane, [the victim] gets on the
plane, and she's no longer in the [S]tate of Massachusetts
anymore, the crime has finished." The trial judge disagreed,
and he permitted the Commonwealth to introduce text messages
sent after the victim had arrived in Nevada as relevant to the
defendant's knowledge and the victim's intent. The trial judge
commented, "I'm not sure there is that much prejudice, in the
sense that there has already been a lot of harmful information
that comes out that was done while in Massachusetts." On
appeal, the defendant does not raise any claim about
admissibility of the text messages, and so we do not consider
that issue.
13

(2021) (evidence of defendant's vulgar text messages to victim

spanning six weeks before arrest proved defendant's knowledge of

victim's commercial sexual activity).

Perhaps most powerfully, the defendant's admissions to

police proved that he trafficked the victim for sex. He

admitted that he knew that the victim was going to Las Vegas to

work as a prostitute, that he bought her plane ticket, and that

he "sent for" her. The defendant also admitted that the

proceeds were "supposed to be split" "on a business level."

Contrary to the defendant's argument in closing, where there was

no evidence that the defendant and the victim reached the

agreement about splitting the proceeds only after he arrived in

Nevada, the jury could have found, in the light most favorable

to the Commonwealth, that he made that agreement before he left

Massachusetts, and certainly before the victim left.8 Cf.

8 At the defendant's request, the trial judge instructed the
jury that the Commonwealth was required to "prove that the crime
of human trafficking as I defined it above occurred in
Massachusetts or that, if done outside of Massachusetts, was
done with the intention of producing detrimental effects in and
within the Commonwealth of Massachusetts." That instruction
seems to have been paraphrased from Vasquez, petitioner, 428
Mass. 842, 848-849 (1999), quoting Strassheim v. Daily, 221 U.S.
280, 285 (1911), both cases that applied the "effects" doctrine
to confer jurisdiction on defendants who "never had set foot in
the state." Strassheim, supra. In contrast, in this case the
jury had before it what the trial judge described as "a lot" of
evidence about the defendant's conduct "done while in
Massachusetts," see supra at note 7. "[W]here there is a
genuine factual dispute as to whether a crime was committed
within Massachusetts, . . . that issue is to be submitted to the
14

Lowery, 487 Mass. at 868 (defendant's statements in text

messages proved he knowingly engaged in sex trafficking).

As for the defendant's claim that the Commonwealth did not

prove that he enticed or recruited the victim to engage in

commercial sexual activity because she had already worked as a

prostitute, it is unavailing. "[N]othing in the language of the

human trafficking statute suggests that it excludes conduct

aimed at victims who have engaged in prostitution in the past."

Commonwealth v. Dabney, 478 Mass. 839, 856, cert. denied, 139

S. Ct. 127 (2018). See Commonwealth v. McGhee, 472 Mass. 405,

427 (2015) (irrelevant whether victim "willing participant" in

commercial sexual activity).

The defendant also contends that his buying the victim's

plane ticket did not amount to transporting her within the

meaning of G. L. c. 265, § 50 (a). The defendant argues that

the Legislature intended the word "transports" in § 50 (a) to

mean that a defendant must operate the vehicle in which a sex

trafficking victim travels. We are not persuaded. Cf.

jury in the form of an instruction," and territorial
jurisdiction is treated "as if it is an element of the offense."
Commonwealth v. Combs, 480 Mass. 55, 61 (2018). The defendant
did not, however, request a special jury question on the basis
for jurisdiction. In these circumstances, we need not reach the
question whether Massachusetts would have had jurisdiction to
prosecute the defendant based solely on his conduct while in
Nevada. Were we to reach the question, we would conclude the
evidence was sufficient.
15

Commonwealth v. Brown, 481 Mass. 77, 90 (2018) (deriving support

from prostitution, G. L. c. 272, § 7, proven by evidence that

defendant accompanied prostitute to and from transaction and

received proceeds, "[w]hether or not the defendant was

driving"). Moreover, the defendant's buying the plane ticket

was also proscribed by other verbs in § 50 (a), including

"recruits," "entices," "obtains by any means," and "attempts to

. . . transport." See Commonwealth v. Gonzalez, 99 Mass. App.

Ct. 161, 169 (2021) (defendant enticed and recruited victim by

providing her with payment in form of drugs and "assist[ing] the

operation in various ways that facilitated its continuation").

Finally, contrary to the defendant's argument, to prove sex

trafficking in Massachusetts, the Commonwealth was not required

to prove that the victim actually engaged in commercial sexual

activity once she arrived in Nevada.9 See Dabney, 478 Mass. at

855 (deriving support from prostitution, G. L. c. 272, § 7,

requires proof of past act of prostitution, but human

trafficking, G. L. c. 265, § 50 [a], requires proof of

defendant's knowledge of victim's "anticipated engagement in

commercial sexual activity" [citation omitted]).

9 There was no evidence before the jury that the victim
engaged in commercial sexual activity in Nevada, only her
affirmative response to the prosecutor's question if while there
she "start[ed] to carry out that plan of making money."
16

We conclude that the jury heard sufficient evidence that

the defendant committed the offense of trafficking for sexual

servitude in Massachusetts.

Judgment affirmed.
SMYTH, J. (concurring). I agree with the majority that the

motion judge did not err by denying the defendant's motion to

suppress statements. I also agree that the evidence was

sufficient to support the guilty verdict for the single count of

human trafficking. I write separately, however, because I

believe the majority too narrowly confines the defendant's

sufficiency of the evidence claim to whether "the evidence at

trial was insufficient to prove that while in Massachusetts [the

defendant] committed conduct prohibited by the sex trafficking

statute," ante at . The defendant also properly raised the

issue whether there was sufficient evidence of the defendant's

acts that occurred outside of Massachusetts to prove the

defendant committed sex trafficking.

The jury instruction for the single count of human

trafficking provided alternative theories, or grounds, of guilt

by presenting the jury with the choice as to whether the

defendant committed the crime either from within Massachusetts

or while out of State. Because we do not know which theory the

jury relied on in reaching their general verdict, we must

examine the defendant's claim that there was insufficient

evidence of the defendant's conduct from outside of

Massachusetts. See Commonwealth v. Rollins, 470 Mass. 66, 78-79

(2014); Commonwealth v. Plunkett, 422 Mass. 634, 635-636 (1996).
2

1. The defendant's out-of-State conduct. The Commonwealth

sought to prove that the defendant enticed, recruited, or

obtained the victim to engage in prostitution, first while he

was present in Massachusetts, and then later, from outside of

Massachusetts. Regarding the defendant's out-of-State conduct,

the Commonwealth presented evidence that the defendant sent text

messages pressuring the victim to join him in Nevada,1 promising

to acquire drugs for her to use before meeting with customers,2

and describing the financial benefits she would receive from

their agreement.3 The defendant also booked and paid the

victim's airfare from Massachusetts to Nevada.

2. The defendant's challenge to the sufficiency of the

evidence. The majority concludes that the issue raised by the

defendant on appeal is limited to whether the jury heard

sufficient evidence to prove that the defendant committed human

trafficking while in Massachusetts. See ante at . I

1 For example, the defendant sent the following text
messages to the victim: "U packed ya shit"; "Wtf r u doing";
"Get ya shot packed and go to mii mii [driver to the bus
station] now"; "Bitch get up"; and "Get tf up."

2 Before leaving for Nevada, the victim advised the
defendant, "I have to be high to do this shit [exchange sex for
money.] u do know that right?"

3 The evidence showed these out-of-State acts occurred from
February 23 through February 25, 2018.
3

disagree, as the defendant also claims that the effects doctrine4

did not confer jurisdiction to Massachusetts because the

Commonwealth failed to prove that the defendant, while he was

beyond the borders of Massachusetts, either committed predicate

acts of human trafficking or intended to act in a manner

detrimental to Massachusetts. He therefore properly raised this

issue, see Mass. R. A. P. 16 (a) (9) (A), as appearing in 481

Mass. 1628 (2019), and I believe it is our obligation to address

it. See Commonwealth v. Angiulo, 415 Mass. 502, 523 n.17

(1993).

Moreover, the Commonwealth does not claim that the

defendant has not properly raised the issue of whether his out-

of-State conduct conferred jurisdiction to Massachusetts. To

the contrary, the Commonwealth's brief addresses the question

whether "there was insufficient evidence of his guilt because

the Commonwealth did not prove beyond a reasonable doubt that

Massachusetts had jurisdiction over the case." In fact, the

Commonwealth does not go so far as the majority in concluding

that the defendant's acts within Massachusetts were sufficient

to support the conviction. See ante at , . Instead, the

Commonwealth argues that Massachusetts had jurisdiction over the

4The effects doctrine, as discussed infra, "has been
described in terms of 'constructive presence' within a State
although the defendant was not physically present." Vasquez,
petitioner, 428 Mass. 842, 848 n.4 (1999).
4

defendant's conduct only after the victim, while in

Massachusetts, received the plane ticket to travel to Nevada;

the undisputed evidence shows the defendant was out of State

when he provided the ticket to the victim.

The defendant did not forfeit his right to challenge the

sufficiency of the evidence of out-of-State jurisdiction by not

requesting a special verdict. See ante at note 8. Indeed, the

judge instructed the jury on both theories of liability,5 see

Commonwealth v. Combs, 480 Mass. 55, 61 (2018) ("where there is

a genuine factual dispute as to whether a crime was committed

within Massachusetts, as here, that issue is to be submitted to

the jury in the form of an instruction"), and the burden was not

on the defendant to request a special verdict, cf. Commonwealth

v. Manzelli, 68 Mass. App. Ct. 691, 695 n.8 (2007) ("Where, as

here, multiple theories of criminal liability are presented to a

jury, the Commonwealth would be well advised to request a

special verdict indicating the precise basis for any conviction

to avoid potentially needless reversals").

5 The trial judge placed the issue of jurisdiction to the
jury as a matter of fact to be proved beyond a reasonable doubt
by instructing them, in pertinent part:

"Now I want to talk about jurisdiction. For this charge,
the Commonwealth must also prove that the crime of human
trafficking as I defined it above occurred in Massachusetts
or that, if done outside of Massachusetts, was done with
the intention of producing detrimental effects in and
within the Commonwealth of Massachusetts."
5

Furthermore, the defendant's right to challenge the

sufficiency of the evidence supporting jurisdiction is not

limited to appealing from the denial of his pretrial motion to

dismiss.6 See ante at note 5. The prosecutor's reference to

venue under G. L. c. 277, § 57A, does not diminish the

Commonwealth's burden of proving jurisdiction beyond a

reasonable doubt. See Commonwealth v. DiMarzo, 364 Mass. 669,

671-672 (1974).

Finally, even if the defendant had not properly raised the

insufficiency of out-of-State jurisdiction as an alternative

theory of proof on appeal, it is my view that we should exercise

our discretion to decide such a fundamental issue in this case.

See Commonwealth v. Elder, 389 Mass. 743, 746 (1983).

3. Discussion. This concurrence relies on two common-law

rules that require a showing of sufficiency for each alterative

ground or theory of proof presented to a jury in a single

charge. First, the Supreme Judicial Court has instructed that

"if the evidence presented to the jury would warrant a

conviction on one ground, but not on another, and it is

impossible to tell on which ground the jury relied, the verdict

must be set aside on appeal" (emphasis added). Rollins, 470

6 The motion judge denied the defendant's pretrial motion to
dismiss for lack of jurisdiction after concluding that whether
the defendant's out-of-State conduct "falls within the 'effects'
doctrine exception" was an issue for the fact finder at trial.
6

Mass. at 78, quoting Chambers v. Commonwealth, 421 Mass. 49, 51-

52 (1995). This rule applies when the grounds for conviction

presented in a single charge may be sufficiently distinct from

each other to constitute different factual bases, and either

ground serves as an independent basis for the conviction.

Rollins, supra at 78-79.

For example, in Commonwealth v. Fragata, 480 Mass. 121,

128-129 (2018), the court determined that evidence of the

defendant's actions of (1) preventing the victim from calling

911, and (2) preventing the victim from leaving her apartment,

constituted alternative grounds to establish the first two

elements of witness intimidation. The court reversed after

concluding that evidence pertaining to only one of the grounds

was sufficient to establish the elements and to sustain the

verdict, and the court had no way of knowing on which ground the

jury relied. See id. at 129. See also Rollins, 470 Mass. at

78-79 (court vacated defendant's conviction on single count of

possession of child pornography where impossible to discern

which of two photographs submitted -- only one of which met

statutory definition of pornography -- was premise for jury's

guilty verdict); Commonwealth v. Johnson, 45 Mass. App. Ct. 473,

477-478 (1998).

Similarly, when there are alternative theories of guilt

alleged in a single charge, it is "our established rule that
7

there must be evidence to support each alternative theory

submitted to the jury to uphold a general verdict of guilty."

Plunkett, 422 Mass. at 639. "[T]his rule does not apply in

every situation where there is more than one way to prove an

element of the crime," but it is instead reserved for

circumstances when "distinct 'theories of guilt . . .'

[constitute] 'alternative means by which to commit the crime'"

(citations omitted). Commonwealth v. Inoa, 97 Mass. App. Ct.

262, 263 (2020).7

This court's decision in Inoa, 97 Mass. App. Ct. at 264,

illustrates this distinction. In Inoa, the court held that the

alternative definitions of "serious bodily injury" did not

establish distinct theories of guilt to support a conviction of

7 The following cases provide examples where the court has
concluded that the evidence as presented in a single charge to a
jury constituted distinct or alternative theories of guilt:
Plunkett, 422 Mass. at 635 (deliberate premeditation and felony-
murder constitute alternative theories of murder); Manzelli, 68
Mass. App. Ct. at 695 n.8 (interception of oral communication
and attempted interception of oral communication present
alternate theories of criminal liability under G. L. c. 272,
§ 99); Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 648
(2006), S.C., 450 Mass. 302 (2007) (possession with intent to
distribute, and "bringing into" Commonwealth constitute
alternate theories of cocaine trafficking); Commonwealth v.
Zuluaga, 43 Mass. App. Ct. 629, 641 (1997) (constructive
possession and actual possession constitute alternative theories
of drug trafficking). In these cases, the court held that the
alternate theories presented to the jury were "'separate,
distinct, and essentially unrelated ways in which the same crime
can be committed,' requiring on appeal that the evidence as to
each theory be assessed separately" (citation omitted). Inoa,
97 Mass. App. Ct. at 264.
8

assault and battery by means of a dangerous weapon causing

serious bodily injury (G. L. c. 265, § 15A), but instead

provided "related ways of proving that element" of the offense.

Id. at 265. See, e.g., Commonwealth v. Smith, 458 Mass. 1012,

1013 (2010) (alternative scienter clauses within second element

of armed home invasion charge not alternative theories of

proof); Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 193–194

(2013) (force and threat of bodily injury alternative ways to

prove element that defendant compelled rape victim to submit,

and not separate theories of guilt).

a. The jury instruction. The judge, during his final

charge concerning the single human trafficking count, instructed

the jury, in pertinent part, as follows:

"Therefore, after considering all of the evidence, you
determine that the Commonwealth has proved beyond a
reasonable doubt that . . . the Defendant knowingly
subjected, recruited, enticed, harbored, transported,
provided, or obtained any means another person,
specifically [named victim], to engage in commercial sexual
activity . . . and that that crime of human trafficking
occurred in Massachusetts or that, if it was done outside
of Massachusetts, was done with the intention of producing
detrimental effects in and within the Commonwealth of
9

Massachusetts, then you shall find the Defendant guilty of
this offense"8,9 (emphasis added).

Although evidence of the defendant's conduct in this case may be

characterized as having constituted a continuous course of

conduct that began in Massachusetts and continued outside of

Massachusetts, by instructing the jury in the disjunctive "or"

on the issue whether the crime of human trafficking occurred

8 The full instructions on jurisdiction were as follows:

"Now I want to talk about jurisdiction. For this charge,
the Commonwealth must also prove that the crime of human
trafficking as I defined it above occurred in Massachusetts
or that, if done outside of Massachusetts, was done with
the intention of producing detrimental effects in and
within the Commonwealth of Massachusetts.

"Therefore, after considering all of the evidence, you
determine that the Commonwealth has proved beyond a
reasonable doubt that each of the two elements I just
defined –- that is that the Defendant knowingly subjected,
recruited, enticed, harbored, transported, provided, or
obtained any means another person, specifically [named
victim], to engage in commercial sexual activity, or that
the Defendant benefited financially or by receiving
anything of value as a result of said activity and that
that crime of human trafficking occurred in Massachusetts
or that, if it was done outside of Massachusetts, was done
with the intention of producing detrimental effects in and
within the Commonwealth of Massachusetts, then you shall
find the Defendant guilty of this offense. If, however,
after your consideration of all the evidence, you find that
the Commonwealth has failed to prove that the crime of
human trafficking occurred in Massachusetts or that, if
done outside of Massachusetts, was done with the intention
of producing detrimental effects in and within the
Commonwealth of Massachusetts, then you shall find the
Defendant not guilty."

9 The defendant does not challenge the propriety of the jury
instruction on appeal.
10

either inside Massachusetts or outside of Massachusetts with

detrimental intentions, the judge effectively directed the jury

to instead consider alternate bases by which the defendant may

have committed the crime of human trafficking. We presume the

jurors followed the judge's instruction. See, e.g.,

Commonwealth v. Bryant, 482 Mass. 731, 737 (2019). As a result,

we are unable to discern whether the jury based their general

verdict on the defendant's course of conduct from either within

or outside of Massachusetts.10

The instruction's jurisdictional divide is significant

because the evidence of the defendant's discrete predicate acts

of enticement, recruitment, transportation, and attempt to

obtain the victim for commercial sexual activity that lie on

either side of the instruction's disjunctive "or" vary in the

dates of occurrence,11 manner of conduct, and territorial

jurisdiction. For instance, the jury may have based their

guilty verdict on evidence that the defendant enticed the victim

10The defendant does not challenge on appeal whether the
possibility that the jury convicted him based on his conduct
outside of Massachusetts presents a "substantial risk that the
defendant was convicted of a crime for which he was not indicted
by a grand jury," in violation of art. 12 of the Massachusetts
Declaration of Rights, given that the indictment against him
alleged he committed the crime in Massachusetts. See
Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995).

11The undisputed evidence could lead a reasonable juror to
conclude that the defendant was in Massachusetts from February
19, 2018, until he flew to Las Vegas on February 23, 2018.
11

by paying for her airfare and pressuring her to join him in

Nevada. These acts are sufficiently distinct from those the

defendant committed in Massachusetts to constitute alternative

grounds of proof. See Fragata, 480 Mass. at 128-129; Rollins,

470 Mass. at 78-79.

Furthermore, the instruction does not present the jury with

merely different ways of proving the first element's actus reus,

for example, recruitment, enticement, or transportation,

consistent with the principle as illustrated above in Inoa, 97

Mass. App. Ct. at 264, and cases cited therein. Instead, the

instruction provides a choice as to how, when, and from where

the defendant committed the crime. Thus, the jurisdictional

distinction provides for sufficiently separate and distinct

means to commit the crime, and it triggers the inevitable

question whether the jury based their verdict on the evidence of

the defendant's conduct inside or outside of Massachusetts.

While it is unnecessary to answer that question here, there must

be sufficient evidentiary support for this alternative means of

guilt. See, e.g., Plunkett, 422 Mass. at 635; Commonwealth v.

Rodriguez, 67 Mass. App. Ct. 636, 649-650 (2006), S.C., 450

Mass. 302 (2007).

The discrete nature of the jurisdictional theories of proof

is further illustrated by the judge's instruction to the jury

that they were required to acquit the defendant if the
12

Commonwealth failed to prove the defendant committed the crime

of human trafficking either from within or outside of

Massachusetts.12 This essentially required the jury to decide

the sufficiency of the evidence as to both jurisdictional

options; otherwise, they were required to acquit. Although I

recognize that the use of the word "or" in both of the

jurisdictional instruction's sentences (concerning the jury's

"consideration of all the evidence"), see note 8, supra, may be

internally inconsistent, viewing these sentences in the context

of the entire instruction, I conclude that the evidence must be

sufficient for each jurisdictional option for the conviction to

stand.

My view does not represent an analytical departure from the

premise that the Commonwealth may proceed on a theory that

evidence of a continuous course of conduct suffices to establish

each essential element, as long as the jury instruction is

consistent with that theory. The court's decision in

Commonwealth v. Fan, 490 Mass. 433, 450–451 (2022), is

12The judge concluded his instructions on jurisdiction as
follows:

"If, however, after your consideration of all the evidence,
you find that the Commonwealth has failed to prove that the
crime of human trafficking occurred in Massachusetts or
that, if done outside of Massachusetts, was done with the
intention of producing detrimental effects in and within
the Commonwealth of Massachusetts, then you shall find the
Defendant not guilty."
13

instructive to this point. In Fan, the Commonwealth alleged

that the defendant, who operated five brothels located in three

different counties, engaged in a continuous course of conduct to

ultimately prove the defendant committed five counts of human

trafficking. See id. The trial judge denied the defendant's

request to instruct the jury they "must be unanimous as to at

least one human person." Id. at 445. Instead, the judge

instructed the jury, in pertinent part, as follows:

"In order to prove any one of these defendants guilty of
[human trafficking], the Commonwealth must prove
essentially two elements beyond a reasonable doubt. . . .
That is, the Commonwealth satisfies this first element if
it proves beyond a reasonable doubt that the defendant: A)
subjected, recruited, enticed, harbored, transported,
provided, or obtained by any means a person or persons to
engage in commercial sexual activity at the particular
location identified in the verdict slip . . . ." (emphasis
added).

Id. at 453 n.14.

In concluding that specific unanimity13 was not required as

to a specific victim and act, the court reasoned that where the

jury are instructed to consider whether a continuing course of

conduct satisfied the elements of a crime, unanimity on the

issue whether a specific event occurred is not required because

when the "jury are not offered a choice between discrete

incidents . . . to support a single charge, the risk of a lack

13The court's unanimity analysis in Fan, 490 Mass. at 450-
451, is relevant to the present case considering that a jury's
sufficiency determination is a precondition to unanimity.
14

of unanimity . . . does not exist" (citation omitted). Id. at

451. Notably, in Fan, the Commonwealth charged the defendant

with a single count of human trafficking as to each brothel, and

the corresponding jury instructions specified the brothel

location as identified on the verdict slip. See id. at 451, 453

n.14. In contrast, the instruction in the present case offered

the jury a choice of discrete courses of conduct in two separate

jurisdictions on which to base their verdict.

Moreover, the Commonwealth's reliance on the defendant's

specific conduct aimed at the victim in the instant case stands

in contrast to the prosecution in Fan and increases the

likelihood the jury would differentiate between jurisdictions in

reaching a verdict. See id. at 451–452 ("the evidence was

presented largely in generalities concerning all of the victims;

there was scant evidence of particular actions against specific

victims").

This court's decision in Commonwealth v. Pimental, 54 Mass.

App. Ct. 325, 327-328 (2002), offers another example of the

significance of the judge's instruction in determining whether

evidence of a continuous course of conduct presented the jury

with alternative theories of guilt. In Pimental, the defendant

challenged the sufficiency of his conviction on a single-count

indictment charging larceny of "one or more firearms" in

violation of G. L. c. 266, § 30. Id. at 328. We rejected the
15

defendant's argument, premised on the rule in Plunkett, 422

Mass. at 638, that each of the allegedly stolen guns constituted

a separate and distinct theory of guilt, and we concluded that

"the indictment, the Commonwealth's proof, and the judge's

instructions plainly presented a single theory of culpability,

directed to a single larcenous plan, involving multiple stolen

items." Pimental, supra. We emphasized that

"[t]he judge charged the jury that the Commonwealth was
required to prove that the defendant had 'acted out of a
single scheme, a continuing intent to steal. That even
though time elapsed between the incidents, they were not
separately motivated, but were part of a general scheme or
a plan to steal.'"

Id. at 327-328. Thus, the jury charge in Pimental provided no

choice of alternative courses of conduct, in contrast to the

instruction here.

b. The effects doctrine. "It is elementary that it must

be shown that jurisdiction lodged in the courts of Massachusetts

before the defendant can be found guilty of the offence

charged." Combs, 480 Mass. at 60, quoting Commonwealth v.

Fleming, 360 Mass. 404, 406 (1971). In determining whether the

evidence is sufficient to support a conviction, the defendant's

exact whereabouts are not controlling because Massachusetts "is

not deprived of jurisdiction over every criminal case in which

the defendant was not physically present within the State's

borders when the crime was committed." Vasquez, petitioner, 428
16

Mass. 842, 848 (1999). Under the effects doctrine articulated

by Justice Holmes over a century ago, "[a]cts done outside a

jurisdiction, but intended to produce and producing detrimental

effects within it, justify a State in punishing the cause of the

harm as if he had been present at the effect."14 Id. at 848-849,

quoting Strassheim v. Daily, 221 U.S. 280, 285 (1911).

The Commonwealth may establish that a defendant, who

commits the elements of a crime from outside the confines of

Massachusetts, produced a detrimental effect within

Massachusetts by proving that the defendant's actions victimized

an individual who resided in Massachusetts at a time when the

victim was physically present within Massachusetts. See

Vasquez, petitioner, 428 Mass. at 849 (jurisdiction proper

"although the offending parent was outside the State at the time

he committed the crime [criminal nonsupport], the detrimental

effect occurred where the child[ren] resided"); Commonwealth v.

Thompson, 89 Mass. App. Ct. 456, 470-471 (2016) (Massachusetts

jurisdiction proper where defendant, acting from within New

Hampshire, victimized individuals who resided in Massachusetts

in credit card fraud).

14It is unclear from the record why the defendant requested
the judge to instruct the jury that they were required to find
that the offense was committed with the intention of producing
detrimental effect, see note 8, supra; see also ante at note 8,
but did not request the judge to instruct that the defendant's
conduct produced a detrimental effect in Massachusetts.
17

"Where territorial jurisdiction is a triable issue, the

Commonwealth's burden of proof is the same as it is for the

substantive elements of the crime(s) charged, that being proof

beyond a reasonable doubt." Combs, 480 Mass. at 61.

c. Sufficiency of the defendant's conduct from outside of

Massachusetts. In reviewing the sufficiency of the evidence,

the "question is 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" (citation omitted). Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979).

A rational jury could have found that the defendant, while

he was in Nevada, recruited, enticed, and attempted to obtain

the victim to engage in prostitution by sending the numerous

text messages, see notes 1 and 2, supra, as well by providing

her transportation from Massachusetts by paying for her airfare

and booking her ticket. Consequently, the jury could have

reasonably concluded that the defendant, by intentionally

victimizing an individual who resided in Massachusetts, intended

to produce and actually produced a detrimental effect within

Massachusetts. See Vasquez, petitioner, 428 Mass. at 849;

Thompson, 89 Mass. App. Ct. at 470-471. While the detrimental

effect in the instant case is not as easily quantified as in

cases involving credit card fraud (Thompson, supra) or obtaining
18

money by false pretenses (Strassheim, 221 U.S. at 285), I am

confident that the evidence was sufficient to establish that the

victim, recently released from jail and battling a drug

addiction, suffered harm by being exposed (and, moreover,

ultimately yielding) to the defendant's enticement and pressure

to resume prostitution.

Furthermore, this harm to the victim detrimentally affected

the Commonwealth given its authority15 and interest in protecting

its residents from being subjected to human trafficking. See

Thompson, 89 Mass. App. Ct. at 470. See also G. L. c. 265,

§ 50 (a). Accordingly, I am satisfied that the evidence of the

defendant's out-of-State conduct rests properly within

Massachusetts jurisdiction pursuant to the effects doctrine.

In determining that the application of the effects doctrine

confers jurisdiction over the defendant, I am mindful that in

enacting the sex trafficking statute "the Legislature recognized

that the Commonwealth could not simply rely on Federal

prosecutions to combat human trafficking, and needed to empower

local authorities" to pursue cases that evaded Federal review.

Commonwealth v. Dabney, 478 Mass. 839, 852–853 (2018).

15"Under its broad police powers, Massachusetts has power
to enact rules to regulate conduct, to the extent that such laws
are necessary to secure the health, safety, good order, comfort,
or general welfare of the community" (quotation and citation
omitted). Thompson, 89 Mass. App. Ct. at 468.
19

Moreover, "[t]he clear and deliberate focus of the statute is

the intent of the perpetrator, not the means used by the

perpetrator to accomplish [their] intent." Commonwealth v.

McGhee, 472 Mass. 405, 415 (2015). It therefore would be

absurd, in our increasingly technology-driven world, to allow

the defendant to evade prosecution in Massachusetts simply

because he recruited and enticed the victim from another State

while she remained in Massachusetts. See Thompson, 89 Mass.

App. Ct. at 472 ("The kind of jurisdictional issue we confront

in this case is likely to appear with increasing frequency as

criminals exploit our digital and virtual interconnectedness to

prey on victims at a geographic remove"). Similarly, given the

jurisdictional challenges associated with human trafficking

offenses, see, e.g., Fan, 490 Mass. at 449 n.12 ("victims of

human trafficking often may be homeless or otherwise transient,

and frequently may be foreign nationals"), it is inconsistent

with our effects law jurisprudence to suggest the Commonwealth

is prohibited from relying on the doctrine to prove an offense

if the evidence shows the defendant also committed predicate

acts within Massachusetts.

Thus, I conclude that the defendant's conduct from outside

of Massachusetts was sufficient to sustain the jury's verdict.