Commonwealth v. Maguire

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14-P-752 Appeals Court
COMMONWEALTH vs. LAWRENCE F. MAGUIRE.
No. 14-P-752.
Suffolk. February 27, 2015. - August 11, 2015.
Present: Vuono, Milkey, & Blake, JJ.
Open and Gross Lewdness and Lascivious Behavior. Resisting
Arrest. Practice, Criminal, Required finding.
Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on October 15, 2010.
The case was tried before David B. Poole, J.
Bradford R. Stanton for the defendant.
Anthony Riley (Matthew T. Sears, Assistant District
Attorney, with him) for the Commonwealth.
VUONO, J. Following a jury trial in the Boston Municipal
Court, the defendant, Lawrence F. Maguire, was convicted of open
and gross lewdness and lascivious behavior in violation of G. L.
c. 272, § 16, and resisting arrest in violation of G. L. c. 268,
2
§ 32B.1 On appeal, the defendant claims that the evidence was
insufficient to support the convictions.2 We affirm.
Background. As is required in considering a question of
the sufficiency of the evidence, "we must look at the evidence
in the light most favorable to the Commonwealth to determine
whether any rational jury could have found the essential
elements of the crime beyond a reasonable doubt." Commonwealth
v. Ruci, 409 Mass. 94, 96 (1991), citing Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979). A reasonable jury could
have found the following facts.
On the afternoon of October 14, 2010, Detective Sean Conway
of the Massachusetts Bay Transportation Authority (MBTA) and the
defendant were on a train headed for the Park Street station.
Once the train arrived at the station, the defendant transferred
to another train and sat down across from a college-aged woman.
Unbeknownst to the defendant, Detective Conway had followed him
1
The jury acquitted the defendant of assault and battery on
a public employee, G. L. c. 265, § 13D, and the lesser included
offense of assault and battery.
2
The defendant moved for a required finding of not guilty
at the close of the Commonwealth's case and renewed his motion
at the close of all the evidence. The defendant testified on
his own behalf and denied engaging in any inappropriate or
criminal behavior. As the jury was entitled to reject the
defendant's testimony in its entirety, the Commonwealth's case
did not deteriorate with the presentation of the defendant's
case. See Commonwealth v. Berry, 68 Mass. App. Ct. 78, 81
(2007). Therefore, we limit our discussion of the evidence to
that presented by the Commonwealth in its case-in-chief.
3
and was standing about eight to ten feet away when he saw the
defendant rub his penis with his hand over his pants for thirty
seconds to a minute.3 The defendant alighted from the train at
the Hynes Convention Center station, and Detective Conway
continued to follow him.
Upon arriving on the station platform, Detective Conway saw
the defendant lean against a pillar with his hands in front of
him. There were about twenty to twenty-five people on the
platform and two or three women sitting on a bench five to six
feet away from the defendant. The defendant faced the women and
jerked his head up and down as if he was seeking their
attention, and then he began to move his hands as if he was
preparing to urinate. Detective Conway was approximately thirty
feet behind the defendant when he observed this behavior, which
he demonstrated to the jury.
In order to better see what the defendant was doing,
Detective Conway crossed over the platform to the other side of
the tracks. As he was coming down the stairs, he had a clear
view of the defendant, who, while still facing the women sitting
on the bench, had exposed his penis. Detective Conway testified
that he saw the defendant's penis for one or two seconds and was
3
The record does not disclose the reasons for which
Detective Conway initially followed the defendant.
4
"disgusted" and "concerned" that the women sitting on the bench
were being "victimized" by the defendant's behavior.
Almost simultaneously with seeing the defendant expose his
penis, Detective Conway made eye contact with the defendant, who
immediately tried to zip up his pants and ran away. Detective
Conway returned to the other side of the platform and attempted
to speak with the women for whom he was concerned. However, for
reasons which are not clear from the record, he was not able to
communicate with them. Meanwhile, the defendant was running
away; thus, Detective Conway cut short his inquiry and chased
after the defendant. During the ensuing pursuit, Detective
Conway said, "[S]top, police," to no avail. Eventually,
Detective Conway caught up with the defendant, and once again
commanded the defendant to stop by repeating, "[S]top, police."
At this point, the defendant stopped, turned toward Detective
Conway, and put up his fists in a fighting stance. He then
punched Detective Conway in the "chest and arm area." Detective
Conway struggled with the defendant for two to three minutes
before he was able to subdue him and place him in handcuffs.
Discussion. 1. Open and gross lewdness. While the
statute, G. L. c. 272, § 16, does not define "open and gross
lewdness and lascivious behavior," our decisional law requires
proof of five elements to support a conviction: "that the
defendant (1) exposed genitals, breasts, or buttocks; (2)
5
intentionally; (3) openly or with reckless disregard of public
exposure; (4) in a manner so 'as to produce alarm or shock'; (5)
thereby actually shocking or alarming one or more persons."
Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008)
(Swan), quoting from Commonwealth v. Kessler, 442 Mass. 770, 773
& n.4 (2004). See Instruction 7.400 of the Criminal Model Jury
Instructions for Use in the District Court (2009). The
defendant contends there was insufficient evidence as to all
five elements.
Our review of the evidence leaves us with no question as to
the sufficiency of the evidence with regard to the first four
elements. Detective Conway's testimony of his observations
permitted a rational jury to find beyond a reasonable doubt that
the defendant "exposed" his penis and that he did so
"intentionally" and "openly." Furthermore, because the
defendant exposed himself while facing the women sitting on a
bench, and in a public place, the jury also could infer that
this action was done in such a way so as to cause alarm or
shock. See Swan, supra at 261 (defendant's positioning himself
in close proximity to victim considered as evidence that
defendant exposed himself in a manner so as to produce shock or
alarm). However, the sufficiency of the evidence as to the
fifth element of the offense, which requires the Commonwealth to
prove that the defendant actually caused one or more persons to
6
experience shock or alarm, is a closer question. We recently
addressed the quantum of evidence required to prove this element
beyond a reasonable doubt in Commonwealth v. Pereira, 82 Mass.
App. Ct. 344, 346-348 (2012) (Pereira). In that case, we said
that "[w]here an 'observer suffered significant negative
emotions as a result of the exposure,' the observer's reaction
'could justifiably be deemed alarm or shock,' [sufficient] to
convict a defendant of open and gross lewdness." Id. at 347,
quoting from Commonwealth v. Kessler, supra at 775. We further
noted that "[w]itnesses are not required to use any special
words to express that they experienced a significant negative
emotion" and "[c]ourts have found a variety of formulations of
negative emotions to satisfy the element of causing actual shock
or alarm, so long as the emotions were of a significant
character." Pereira, supra at 347.
Our decision in Pereira, contrary to the conclusion reached
by the dissent, controls the outcome here. In that case, we
concluded that a rational jury could have found beyond a
reasonable doubt that the defendant's actions -- masturbating
while sitting in his vehicle, which was parked near the Sullivan
Square MBTA station -- produced the requisite shock and alarm in
a police officer who observed the defendant. The officer's
attention was drawn to the defendant because "he had his head
down" and "his right shoulder was hunching up and down." Id. at
7
345. The officer approached the defendant's vehicle and upon
looking in the window observed the defendant with his pants
down, masturbating. Ibid. The officer described his reaction
to the defendant as feeling "personally, angry, a little bit
disgusted." Ibid. The officer also noted that it was "a busy
area, a lot of women around there, kids, everything so I wasn't
happy about it." Ibid.
Here, Detective Conway stated that the defendant's exposure
caused him to feel "disgusted" and "concerned that the females
that were sitting on the bench were being victimized by his
behavior." The defendant argues that "disgust" and "concern,"
absent other evidence, are too equivocal to convey a significant
negative emotion. We note no significant distinction between
the "little bit disgusted" and "angry" described by the police
officer in Pereira and the "disgust" and "concern[ ]" described
by Detective Conway.4 See Commonwealth v. Gray, 40 Mass. App.
Ct. 901, 901 (1996) (evidence sufficient where victim, a member
4
We respectfully disagree with the conclusion reached by
our dissenting colleague that Detective Conway's feeling of
"disgust" was of a "vicarious sort" more akin to being offended
than shocked or alarmed and, therefore, insufficient to satisfy
the fifth element of the offense charged. That a rational jury
could reasonably so conclude is inconsequential. The question
so often repeated in our cases is whether any rational trier of
fact could conclude, beyond a reasonable doubt, that the
defendant's actions produced shock or alarm in Detective Conway.
Moreover, that the detective, according to the dissent, should
not have been surprised by the defendant's conduct does not
preclude a finding that he was, in fact, shocked or alarmed.
8
of the maintenance staff at a shopping mall, was "disgusted" by
sight of two men engaged in act of fellatio in public bathroom);
Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303-304 (1999)
(even though witness "did not express herself hysterically," a
rational fact finder could conclude that she had been "shocked
or alarmed" based on her description of what she saw and that
she felt "very uncomfortable and nervous"); Swan, 73 Mass. App.
Ct. at 261 (witness's testimony that he was "grossed out" and
"nervous" sufficient for finding that he was "alarmed").
Further, contrary to the defendant's assertion, Detective
Conway's expressed concern for the public is relevant in that it
illuminates "how the circumstances surrounding the incident
influenced [Detective Conway's] reaction to it," Pereira, 82
Mass. App. Ct. at 348, and, ultimately, supports the conclusion
that the defendant's conduct caused him to be shocked or
alarmed. Accordingly, we conclude that the judge did not err in
denying the defendant's motion for a required finding of not
guilty.
2. Resisting arrest. A defendant resists arrest if "he
[or she] knowingly prevents or attempts to prevent a police
officer, acting under color of his official authority, from
effecting an arrest of the actor or another, by: (1) using or
threatening to use physical force or violence against the police
officer or another; or (2) using any other means which creates a
9
substantial risk of causing bodily injury to such police officer
or another." G. L. c. 268, § 32B(a), inserted by St. 1995,
c. 276. The crime occurs at the time an officer is "effecting"
an arrest, which is when "there is (1) an actual or constructive
seizure or detention of the person, [2] performed with the
intention to effect an arrest and [3] so understood by the
person detained." Commonwealth v. Grandison, 433 Mass. 135, 145
(2001) (quotation omitted). The relevant inquiry is an
objective one: i.e., whether, under the circumstances, a
reasonable person would have understood that he was being
arrested. Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208
(2008).
Viewed in the light most favorable to the Commonwealth, the
evidence established that in response to Detective Conway's
repeated commands of "[S]top, police," the defendant continued
to run, and when the detective caught up with the defendant, the
defendant assumed a fighting stance and threw a punch at the
detective. Afterward, the defendant struggled with Detective
Conway, even though the detective repeatedly ordered him to
place his hands behind his back. Even if we were to assume, as
the defendant claims, that he did not initially recognize
Detective Conway as a police officer (Detective Conway was not
in uniform, but he wore a badge and his firearm was visible),
the evidence was sufficient to support the finding that the
10
defendant understood that Detective Conway was a police officer
when he said, "[S]top, police." Moreover, given the protracted
struggle to place him in handcuffs and the shouts to comply, a
reasonable person would have understood that he or she was
subject to arrest. See Commonwealth v. Quintos Q., 457 Mass.
107, 111 (2010). Accordingly, we reject the defendant's
challenge to his conviction of resisting arrest.
Judgments affirmed.
MILKEY, J. (concurring in part and dissenting in part).
There plainly was sufficient proof that the defendant committed
an indecent exposure under G. L. c. 272, § 53. That statute
requires only an "intentional act of lewd exposure, offensive to
one or more persons." Commonwealth v. Swan, 73 Mass. App. Ct.
258, 261 (2008) (quotation omitted). However, as the Supreme
Judicial Court has repeatedly emphasized, significant additional
proof is required for the far more serious charge of open and
gross lewdness under G. L. c. 272, § 16.1 See Commonwealth v.
Kessler, 442 Mass. 770, 774 (2004) (Kessler) (insufficient proof
that defendant's masturbating in front of window constituted
open and gross lewdness). Because I believe the necessary
additional proof is absent here, I respectfully dissent.2
As the Supreme Judicial Court has made clear, "the central
purpose of G. L. c. 272, § 16, [i]s one of preventing fright and
intimidation, particularly regarding children." Commonwealth v.
Ora, 451 Mass. 125, 128 (2008) (Ora). A conviction under that
statute requires, inter alia, proof beyond a reasonable doubt
that at least one person was in fact "alarmed" or "shocked" by a
1
Open and gross lewdness is a felony punishable by up to
three years in State prison. G. L. c. 272, § 16. Indecent
exposure is a misdemeanor punishable by up to six months in a
jail or house of correction. G. L. c. 272, § 53.
2
I agree with the majority that there was sufficient
evidence to support the defendant's conviction of resisting
arrest.
2
defendant's conduct. See Kessler, supra at 772-773 & n.4. Open
and gross lewdness is a "much more serious offense than . . .
indecent exposure and consequently requires a substantially more
serious and negative impact as a result of the behavior." Ora,
supra at 127 (citation omitted), citing Kessler, supra at 774-
775. Detective Conway was the only known eyewitness to the
defendant's exposing himself,3 and consequently, the
Commonwealth's case depended on proof that the exposure caused
the detective to experience a "serious negative emotional
experience" above and beyond "mere nervousness [or] offense."
Kessler, supra at 774. In my view, the Commonwealth did not
come close to meeting its burden here.
As we recently held, the Commonwealth may put forward a
police officer as the victim of an open and gross lewdness
charge, and this does not raise the Commonwealth's burden of
proof. Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 348
(2012) (Pereira). However, relying on a police officer as the
victim obviously also cannot lower the Commonwealth's burden; it
still must prove that the officer personally was "alarmed" or
"shocked" by a defendant's conduct. To be sure, Detective
Conway stated that he "was disgusted" upon seeing the
3
The Commonwealth presented no evidence that the women on
the bench or any person other than Detective Conway in fact
observed the defendant's exposure. Detective Conway himself was
able to view the defendant's exposed penis only by running up
the stairs to get to the opposite subway platform.
3
defendant's exposed penis, and the majority accurately points
out that such language is similar to that used by witnesses in
cases in which convictions for open and gross lewdness have been
affirmed. See, e.g., Commonwealth v. Gray, 40 Mass. App. Ct.
901, 901 (1996) (victim "disgusted" by sight of oral sex act in
public bathroom). But, as the cases make clear, the specific
language used by an eyewitness to alleged open and gross
lewdness is not dispositive. See Pereira, supra at 347
("Witnesses are not required to use any special words to express
that they experienced a significant negative emotion"). Just as
the absence of any particular language in a witness's
description of his reaction is not necessarily fatal to the
Commonwealth's case, so too the presence of any particular
language is not necessarily sufficient.
Here, the detective himself went on to explain in detail
the nature of his reaction. Immediately after noting that he
"was disgusted," he elaborated that he "was concerned that the
females that were sitting on the bench were being victimized by
[the defendant's] behavior." Thus, his "disgust" was of a
vicarious sort, born of his "concern" that others might be
affected by the defendant's behavior. In this sense, Detective
Conway used the term "disgusted" to mean something analogous to
"offensive" under the indecent exposure statute. See
Commonwealth v. Cahill, 446 Mass. 778, 781 (2006) ("Offensive
4
acts are those that [are] . . . repugnant to the prevailing
sense of what is decent or moral") (quotation omitted).
The rest of the detective's testimony reinforces that he
personally was not "shocked" or "alarmed." He acknowledged that
it was "common" for him to see exposed penises in such settings
as public restrooms and locker rooms, and that he personally was
not disgusted by seeing them. In addition, he hardly can claim
surprise by the sight of the defendant's penis after the great
lengths he went to in order to put himself in a position to see
it.4 After the detective observed the defendant's exposed penis,
he proceeded in a prompt but measured manner to effect the
defendant's arrest. His moving in this manner is not evidence
of his "shock" or "alarm" but, rather, is merely evidence that
4
The fact that Detective Conway voluntarily placed himself
in a position to observe the defendant's penis itself raises
some doubt as to the validity of this prosecution. The Supreme
Judicial Court has made clear that the open and gross lewdness
"statute cannot be constitutionally applied to public displays
of lewdness and nudity unless they are imposed upon an
unsuspecting or unwilling audience." Ora, 451 Mass. at 126,
citing Revere v. Aucella, 369 Mass. 138, 142-143 (1975), appeal
dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877
(1976). Needless to say, an officer who views offensive conduct
as part of his or her job is differently situated from a
civilian who voluntarily views such conduct. However, the
differences do not necessarily aid the Commonwealth. Cf.
Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 584 (2003)
(evidence that officers were concerned with disruption caused by
defendant's yelling by itself could not satisfy public element
of disorderly conduct charge; "behavior that has an impact only
upon members of the police force is significantly different from
that affecting other citizens in [part because] it is an
unfortunate but inherent part of a police officer's job to be in
the presence of distraught individuals").
5
he effectively was doing his job. Contrast Commonwealth v.
Gray, 40 Mass. App. Ct. at 901 (highlighting that citizen victim
reacted "swiftly" by moving to stop the defendants and to
contact the police). Simply put, a police officer's moving
quickly to arrest someone that he observed exposing his genitals
in public reveals nothing about the officer's emotional state.
Nothing in Pereira dictates an affirmance here. That case
involved a public sex act (masturbation) rather than mere
exposure, and the officer there testified that he was "angry" in
addition to being somewhat "disgusted." Pereira, 82 Mass. App.
Ct. at 345. Moreover, Pereira does not state that a police
officer's "disgust" on behalf of others, without more, suffices
to support a finding that the officer was "alarmed or shocked."
Reading Pereira in this manner would render it inconsistent with
Kessler. In addition, this would allow the Commonwealth to
convert any ordinary indecent exposure case into one for open
and gross lewdness anytime there was a police eyewitness who was
willing to state that, out of concern for others, he or she was
"disgusted" by the defendant's actions.
In sum, I believe there was insufficient evidence that the
defendant's conduct here caused a "substantially more serious
and negative impact" on the detective than that required to make
out a case of indecent exposure. Ora, 451 Mass. at 127. I
therefore would reverse the defendant's conviction of open and
6
gross lewdness and remand for entry of a conviction on the
lesser included crime of indecent exposure.