This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from his conviction of lewd, wanton, and lascivious conduct in violation of G. L. c. 272, § 53, the defendant asserts only that the evidence was insufficient to permit the judge (sitting without a jury) to find beyond a reasonable doubt that his conduct occurred in public. We affirm.
" The rationale of [the statute] is to prevent the open flouting of community standards regarding sexual matters. The statutory object is to prevent the possibility that the defendant's conduct might give offense to persons present in a place frequented by members of the public for reasons of business, entertainment, or the like. However, the statute is not designed to punish persons who desire privacy and take reasonable measures to secure it." Commonwealth v. Ferguson, 384 Mass. 13, 16, 422 N.E.2d 1365 (1981) (citations and quotation marks omitted).
To make out an offense under G. L. c. 272, § 53, the Commonwealth was required to prove beyond a reasonable doubt that (1) the defendant committed a sexual act, (2) involving the touching of the genitals or buttocks, (3) for either the purpose of sexual arousal or gratification, or for the purpose of offending other people, and (4) " in a public place; that is, a place where the defendant either intended public exposure, or recklessly disregarded a substantial risk of public exposure at that time and under those circumstances, to others who might be offended by such conduct." Commonwealth v. Nebel, 59 Mass.App.Ct. 316, 318-319, 795 N.E.2d 609 (2003). We are concerned here only with the fourth of these elements and, more particularly, with whether the evidence sufficed to permit the judge to find that the defendant recklessly disregarded a substantial risk of public exposure when he loudly and vigorously masturbated in a dumpster located in a church parking lot that was also used as a schoolyard.
In the circumstances presented, " [t]he Commonwealth [was required to] prove that the likelihood of being observed by casual passersby must have been reasonably foreseeable to the defendant, or stated otherwise, that the defendant acted upon an unreasonable expectation that his conduct would remain secret." Commonwealth v. Nicholas, 40 Mass.App.Ct. 255, 257, 663 N.E.2d 266 (1996). " The public element may be satisfied where the actor's conduct takes place on private property that is frequented by the public," or where it is shown that the behavior affects or is likely to affect " persons in an adjacent or nearby 'place to which the public or a substantial group has access.'" Commonwealth v. Mulvey, 57 Mass.App.Ct. 579, 583, 784 N.E.2d 1138 (2003), quoting from Model Penal Code § 250.2 (1980). See Commonwealth v. Sefranka, 382 Mass. 108, 117-118, 414 N.E.2d 602 (1980) (General Laws c. 272, § 53, prohibits sexual conduct in a public place done " by a person who knows or should know of the presence of a person or persons who may be offended by the conduct" ); Commonwealth v. LePore, 40 Mass.App.Ct. 543, 546, 666 N.E.2d 152 (1996), quoting from Alegata v. Commonwealth, 353 Mass. 287, 304, 231 N.E.2d 201 (1967) (" 'Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access" ). " [T]he public place issue is not a matter of characterizing a location as intrinsically public or private; the question rather is whether the actor in the given circumstances was being recklessly indifferent to a substantial chance that others would observe the act and might be offended by the sight." Commonwealth v. Guy G., 53 Mass.App.Ct. 271, 274-275, 758 N.E.2d 643 (2001).
We review the evidence under the familiar standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). On Good Friday, April 22, 2011, at around 9:30 a.m., Stacy Santos, the administrative assistant for the Sacred Heart Church in North Attleboro, observed the defendant walk across the parking lot of the church, which also acted as a schoolyard, and get into the church's dumpster by sliding open a door in its side. Santos made this observation through her office window, while sitting at her desk. The parking lot had room for approximately twenty cars, where parishioners would park to attend church services. During school hours, the lot was used instead as a schoolyard for the 286 children who attended the parish school that has two modular classrooms located in the lot. On other occasions, the lot was used as a playground by neighborhood children. On the morning in question, school was not in session. The dumpster had no lock, was accessible to church personnel and school janitors, and could be opened from the top or from the side.
Santos, assuming that the defendant had gone into the dumpster in order to look for cans or other trash, expected him to emerge shortly. Instead, she heard a " racket" and banging, and saw the dumpster " moving." The noise was loud enough for her to hear even though she was inside her office and twenty-five feet away. Concerned, she called the parish priest and the police.
When the priest arrived, he could hear loud banging and " non-decipherable" words coming from the dumpster through the closed windows of his car. A police officer opened the door of the dumpster and found the defendant, who has had a plastic garbage bag fetish since at least the age of twelve, naked and masturbating.
The evidence was sufficient to permit the judge to find beyond a reasonable doubt that the defendant recklessly disregarded a substantial risk of public exposure when he masturbated in such a manner that the dumpster could be seen to be moving and he could be heard by people located in places of public access, even from behind closed windows. See Commonwealth v. Lopiano, 60 Mass.App.Ct. 723, 725, 805 N.E.2d 522 (2004), quoting from Commonwealth v. Mulvey, 57 Mass.App.Ct. 579, 584, 784 N.E.2d 1138 (2003) (evidence sufficient as to public place where " people could have seen or heard the defendant from any place of public access, such as a nearby sidewalk, publicly used path or road, shopping area or other neighborhood facility" ). Even though the defendant closed the door of the dumpster, the judge could find, in the circumstances, that he acted upon an unreasonable expectation that his conduct would remain secret.
We acknowledge that the defendant offered expert testimony that his Asperger's syndrome showed that he used the dumpster not because it was public but to gratify his plastic garbage bag fetish. But his actual intent in that regard is not at issue where, as here, the Commonwealth proceeded on the theory that, objectively viewed, the defendant recklessly disregarded a substantial risk of public exposure.
Vuono, Wolohojian & Sullivan, JJ.