Commonwealth v. Coppinger , 86 Mass. App. Ct. 234 ( 2014 )

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13-P-287 Appeals Court
COMMONWEALTH vs. JOHN G. COPPINGER.
No. 13-P-287.
Plymouth. May 2, 2014. - September 4, 2014.
Present: Trainor, Fecteau, & Carhart, JJ.
Open and Gross Lewdness and Lascivious Behavior. Constitutional
Law, Vagueness of statute. Evidence, Intent. Intent.
Practice, Criminal, Instructions to jury, Request for jury
instructions. Words, "Exposure."
Indictments found and returned in the Superior Court
Department on June 3, 2011.
The cases were tried before Robert C. Cosgrove, J.
Brian A. Kelley for the defendant.
Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
CARHART, J. After a jury trial, the defendant was found
guilty of open and gross lewdness, in violation of G. L. c. 272,
§ 16, and of accosting a person of the opposite sex, in
violation of G. L. c. 272, § 53. Appealing from his conviction
of open and gross lewdness, he argues that the trial judge erred
2
in denying his motion to dismiss, alleging that the statute
prohibiting open and gross lewdness is unconstitutionally vague.
The defendant also argues that the trial judge erred in denying
his motion for a required finding of not guilty and in
instructing the jury on a definition of the word "exposure." We
affirm.
Background. The following facts are not in dispute. On
April 5, 2011, the defendant entered a Target store in Kingston.
On that occasion, he chose to wear white "see-through"
compression shorts. On his way into the store, the defendant
asked an employee whether it was "okay" to wear his shorts
inside. Several Target employees testified to seeing the
defendant's buttocks and the "flesh color of his skin" through
the shorts. One witness testified that she could "clearly" see
that the defendant was not wearing underwear. Another witness
described seeing the outline of the defendant's "semi-erect"
penis. On redirect, the witness stated that she saw a semi-
erect penis through the shorts. The witness also testified that
she saw the defendant's testicles through the shorts. Various
witnesses described their shock. A store employee notified the
police. The police responded as the defendant was pulling on a
pair of jeans over his compression shorts outside of the store.
The defendant was arrested and charged.
3
Prior to trial, the defendant filed a motion to dismiss,
alleging that the statute prohibiting open and gross lewdness
was unconstitutionally vague. That motion was denied. At the
close of the evidence, the defendant moved for a required
finding of not guilty. That motion was also denied. The
defendant requested that the trial judge instruct the jury that
"expose" means "an act of exposing or the state of being
exposed" and "to lay bare or uncover." The judge instructed the
jury as follows:
"[W]hat does it mean to expose one's genitals or
buttocks[?] The word expose is not a technical legal term
but is to be understood in its common meaning. The
Merriam-Webster dictionary defines exposed in part as 'to
cause to be visible or open to view,' or 'to display.'
Whether the defendant exposed his genitals or buttocks is a
question of fact to be resolved by you, the jury."
The defendant objected to the instruction.
Discussion. 1. Motion to dismiss. On appeal, the
defendant argues that the trial judge erred in denying his
motion to dismiss because G. L. c. 272, § 16, is
unconstitutionally vague. We disagree. Statutes "must be
sufficiently specific so as to give fair notice as to what
conduct is forbidden." Commonwealth v. Adams, 389 Mass. 265,
270 (1983). A statute lacks the required specificity where "men
of common intelligence must necessarily guess at its meaning."
Commonwealth v. Crawford, 430 Mass. 683, 689 (2000), quoting
from Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980).
4
Unspecific statutory language "may nonetheless be sufficiently
definite because of 'judicial construction, common law meaning,
or the statutory history of particular terms' . . . and such a
statute may be rendered 'constitutionally definite by giving it
a reasonable construction.'" Commonwealth v. Quinn, 439 Mass.
492, 499-500 (2003), quoting from Commonwealth v. Gallant, 373
Mass. 577, 581 (1977), and Commonwealth v. Sefranka, supra at
111.
General Laws c. 272, § 16, criminalizes "open and gross
lewdness and lascivious behavior." The Supreme Judicial Court
has clearly and specifically set forth the meaning of those
terms:
"In order to satisfy the constitutional standard of
specificity, we construe G. L. c. 272, § 16, to prohibit
the intentional exposure of genitalia, buttocks, or female
breasts to one or more persons. The Commonwealth must
prove beyond a reasonable doubt: (1) the defendant exposed
his or her . . . genitals, buttocks, or female breasts to
one or more persons; (2) the defendant did so
intentionally; (3) the defendant did so 'openly,' that is,
either he or she intended public exposure, or he or she
recklessly disregarded a substantial risk of public
exposure, to others who might be offended by such conduct;
(4) the defendant's act was done in such a way as to
produce alarm or shock; and (5) one or more persons were in
fact alarmed or shocked by the defendant's exposing himself
or herself."
Commonwealth v. Quinn, supra at 501.
Notwithstanding this enunciation of the elements, the
defendant argues that the statute is unconstitutionally vague as
5
applied to him,1 because it fails to define the term "exposure"
and provide him with notice that his conduct was criminal. In
reviewing the statute as challenged, we view the evidence "in
the light most favorable to the Commonwealth." Commonwealth v.
Rosa, 62 Mass. App. Ct. 622, 627 (2004). In that light, there
is no question whatsoever that the defendant displayed his
genitals and buttocks through his compression shorts. There is
also no question that exposing one's genitals or buttocks, in
conjunction with the other elements of the crime, violates the
statute. See Commonwealth v. Quinn, supra at 497-499.
Accordingly, the crux of our inquiry is whether exposure
requires a naked display or whether it is possible to expose a
body part through a covering. We turn to "common understanding
and practices" to assist our analysis. Commonwealth v. Jarrett,
359 Mass. 491, 496-497 (1971) ("[I]f the language which is
challenged conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practices, it is constitutionally adequate"). See Commonwealth
v. King, 374 Mass. 5, 12 (1977) (turning to "common
understanding for definition" of "lewd, wanton, and lascivious
speech" and "prostitution"); Commonwealth v. Arthur, 420 Mass.
535, 540 (1995) (considering whether pubic hair fell within the
1
The statute is not unconstitutionally vague on its face.
See Commonwealth v. Ora, 451 Mass. 125, 126 (2008).
6
"commonly understood meaning" of "genitalia"); Commonwealth v.
Robertson, 467 Mass. 371, 378 (2014) (turning to common
understanding to define "partial nudity").
We consider the hypothetical scenario of a person wearing
shorts made from cellophane instead of the material that the
defendant wore. We think that such conduct certainly falls
within a common understanding of exposure, as the person's
genitals and buttocks would be completely visible, regardless of
the covering.2 We see no meaningful difference between wearing
cellophane shorts and the defendant's choice to wear shorts that
were sufficiently revealing to a degree that the public could
see the "flesh color of his skin," his buttocks, and his
genitals. While we are sensitive to the fine line between an
individual's freedom of expression and the criminal nature of
the conduct prohibited by the statute, the defendant's conduct
in this case went far beyond the reasonable bounds of
permissible expression. See Commonwealth v. Ora, 451 Mass. 125,
126 (2008) (G. L. c. 272, § 16, is not facially
unconstitutional, even though it restricts "expressive conduct,"
because our case law limits the statute's reach to conduct
"imposed upon an unsuspecting or unwilling audience").
2
Indeed, defense counsel conceded, at oral argument, that
wearing shorts made from "Saran Wrap" would constitute exposure.
7
We also consider that the Supreme Judicial Court recently
opined that exposure is "generally defined as 'an act of
exposing,' 'a condition or instance of being laid bare or
exposed to view,'" or "to lay open to view; lay bare; make
known." Commonwealth v. Robertson, supra at 377, quoting from
Webster's Third New International Dictionary 802 (2002), and
American Heritage Dictionary of the English Language 626 (4th
ed. 2006). The defendant in this case certainly "opened," or
"exposed," his genitals and buttocks "to view" and made them
"known." We think that displaying something such that it is
clearly visible, even while wearing shorts of the sort worn by
the defendant, fits within these definitions of "exposure."
In concluding that the defendant's conduct fell within a
common understanding of exposure and that the statute was not
vague as applied to the defendant, we note that the vagueness
doctrine recognizes "the practical difficulties in drawing
criminal statutes both general enough to take into account a
variety of human conduct and sufficiently specific to provide
fair warning that certain kinds of conduct are prohibited."
Commonwealth v. Gallant, 373 Mass. at 580, quoting from Colten
v. Kentucky, 407 U.S. 104, 110 (1972). See Commonwealth v.
Jarrett, 359 Mass. at 496 ("[M]ere difficulty in determining
whether certain marginal offences are within the meaning of the
language under attack as vague does not automatically render it
8
unconstitutional for indefiniteness"); Commonwealth v. Miozza,
67 Mass. App. Ct. 567, 570 (2006), quoting from Commonwealth v.
Conefrey, 37 Mass. App. Ct. 290, 301-302 (1994), S.C., 420 Mass.
508 (1995) ("[A] statute is not vague merely because 'it
requires a person to conform his conduct to an imprecise but
comprehensible normative standard'"). Compare Commonwealth v.
Quinn, 439 Mass. at 501 (holding that the defendant could not be
prosecuted under G. L. c. 272, § 16, "for exposing his buttocks"
because all prior cases at that time involved genitalia, which
is commonly understood to include reproductive organs, not the
buttocks).
Although our case law does not directly address exposure
through a covering,3 the defendant nonetheless had fair warning
that his conduct was prohibited because a common understanding
of exposure certainly includes his conduct in the Target store.
We believe that a person of "common intelligence" would not have
difficulty imagining that the statute proscribes displaying
one's genitals and buttocks through sheer material.
3
In Commonwealth v. Kelley, we considered whether a
defendant who was caught "masturbating in a pair of women's
underpants near a window in the master bedroom" indecently
exposed himself under G. L. c. 272, § 53. Commonwealth v.
Kelley, 25 Mass. App. Ct. 180, 181-182 (1987). See Commonwealth
v. Fitta, 391 Mass. 394, 396 (1984) (stating that G. L. c. 272,
§ 16, and G. L. c. 272, § 53, which criminalizes "indecent
exposure," are similar). We held that there was insufficient
evidence to convict because the defendant's conduct was not
"public." We did not address whether the defendant had
"exposed" himself while wearing underwear.
9
Accordingly, we conclude that a person indeed exposes himself or
herself where his or her genitals, buttocks, or female breasts
are clearly visible to the public, regardless of whether the
person is naked or wearing a see-through covering.4 Thus, the
trial judge did not err in denying the motion to dismiss.
2. Motion for a required finding. The defendant also
argues that the trial judge erred in denying his motion for a
required finding of not guilty because the judge did not apply
the rule of lenity in defining "exposure" and because there was
insufficient evidence that the defendant intentionally or
recklessly exposed himself to the public.5 In reviewing a
denial, we ask, "whether, after viewing the evidence in the
light most favorable to the Commonwealth, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt." Commonwealth v. Arce, 467 Mass. 329, 333
4
We acknowledge that there may be a fine line regarding the
acceptable opacity of clothing. We limit our holding to the
facts in this case, where the defendant's genitals and buttocks
were clearly visible.
5
At the close of the Commonwealth's case, the defendant
moved for a required finding of not guilty on both counts: open
and gross lewdness, G. L. c. 272, § 16, and accosting a person
of the opposite sex, G. L. c. 272, § 53. While he moved
generically on the count charging accosting a member of the
opposite sex, the main focus of his argument was that the
provisions of G. L. c. 272, § 16, are unconstitutionally vague.
On appeal, he does not press his argument as to the count
charging a violation of G. L. c. 272, § 53, nor did he do so at
oral argument. In light of our decision herein, however, we are
persuaded that the Commonwealth presented sufficient evidence to
support convictions on both counts.
10
(2014), quoting from Commonwealth v. Latimore, 378 Mass. 671,
677 (1979).
Under the rule of lenity, we interpret ambiguous statutory
language in a criminal defendant's favor. See Commonwealth v.
Maloney, 447 Mass. 577, 584-585 (2006). "However, the rule of
lenity 'is a guide for resolving ambiguity, rather than a rigid
requirement that we interpret each statute in the manner most
favorable to defendants.'" Id. at 585, quoting from
Commonwealth v. Roucoulet, 413 Mass. 647, 652-653 (1992). Just
as we concluded that G. L. c. 272, § 16, is not void for
vagueness, we also conclude that the statute is not ambiguous.
Contrary to the defendant's argument, exposure is a word with a
commonly understood meaning. See Commonwealth v. Carrion, 431
Mass. 44, 47 (2000) (rejecting a defendant's vagueness and
ambiguity arguments where the phrase, "any escape from custody
of the department," was "within common understanding").
Moreover, even if we were to adopt the defendant's most
favorable suggested definition of exposure, "to lay bare or
uncover," a rational trier of fact could have returned a guilty
verdict. Based on the testimony presented at trial, a rational
juror could have found that the defendant was "bared" or
"uncovered," in that he wore "see-through" shorts that displayed
his skin tone, genitals, and buttocks instead of the pants he
later used to cover himself when the police arrived. We again
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consider the hypothetical scenario regarding cellophane and
suggest that a rational juror could find that a person wearing
cellophane shorts was "bare" or "uncovered," just as a rational
juror could have made such a finding here. We also conclude
that a rational juror could have found that the defendant acted
intentionally or recklessly given that, among other behavior
indicating intent, the defendant asked permission to wear his
shorts in the store and immediately covered himself with pants
when the police arrived. The denial of the motion was not
error.
3. Jury instructions. Finally, the defendant argues that
the trial judge erred in providing a jury instruction that did
not include the defendant's suggested definition of exposure.
We review the instruction, to which the defendant objected, for
prejudicial error. See Commonwealth v. Szlachta, 463 Mass. 37,
45 (2012). In doing so, we are mindful that a trial judge has
discretion in giving jury instructions. See Commonwealth v.
Robinson, 449 Mass. 1, 78 (2007). Specifically, a trial judge
may use a dictionary in instructing jurors on statutorily
undefined terms. See Commonwealth v. Walker, 442 Mass. 185,
194-195 (2004) (trial judge did not err in using Webster's
Dictionary to define "poison"); Commonwealth v. LeBlanc, 73
Mass. App. Ct. 624, 629 (2009), S.C., 456 Mass. 135 (2010)
(trial judge did not err in using a dictionary definition where
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the definition embodied the word's "usual and accepted
meanings"). Here, although the trial judge did not use the
exact definition suggested by the defendant, the judge provided
an acceptable dictionary definition couched in important
language that "[t]he word expose is not a technical legal term"
and the term should "be understood in its common meaning." See
Commonwealth v. Robinson, supra (we consider the charge as a
whole). We see no error.
The defendant also argues that the trial judge erred in
giving the instruction because he did not apply the doctrine of
lenity in defining "exposure." We, again, note that exposure is
not ambiguous and that the doctrine of lenity does not apply.
We conclude that there was no prejudicial error.
Judgments affirmed.