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Commonwealth v. Fisher

Appeals Court of Massachusetts

July 1, 2015

Commonwealth
v.
Christopher Fisher

Editorial Note:

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

The defendant was convicted by a jury of open and gross lewdness in violation of G. L. c. 272, § 16. On appeal, he contends that his act was not done in such a way as to produce alarm or shock, or that it did not in fact shock or alarm the victim.[1] See, e.g., Commonwealth v. Kessler, 442 Mass. 770, 772-773, 817 N.E.2d 711 & n.4 (2004). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), we conclude that the evidence was sufficient to support the conviction, and affirm the judgment.

Sufficiency of the evidence.

To obtain a conviction on the offense of open and gross lewdness in violation of G. L. c. 272, § 16, the Commonwealth must prove five elements beyond a reasonable doubt:

" (1) the defendant exposed his . . . genitals . . . to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so 'openly,' that is, either he . . . intended public exposure, or he . . . 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."

Commonwealth v. Quinn, 439 Mass. 492, 501, 789 N.E.2d 138 (2003).

Nurse Ndoro testified that she instructed the defendant to lower his pants so she could examine his lower abdomen, but did not instruct him to do anything else (including to expose his penis); she also testified that the defendant " seemed very nervous, very edgy." When she turned around to examine the defendant, she discovered that he had taken off both his pants and his underwear and was stroking his fully erect penis; he continued to stroke his penis until he ejaculated on the examination room floor a short time thereafter.

A rational jury could have concluded that the defendant's act was done in such a way as to produce alarm or shock. Nurse Ndoro was facing away from the defendant when she instructed him only to lower his pants and, when she turned around, she found that the defendant had not simply lowered his pants as instructed, but had removed his pants and underwear and was stroking his penis. This was sufficient to establish that the defendant's act was done in such a way as to produce alarm or shock. A rational jury also could have concluded that Nurse Ndoro was alarmed or shocked by the defendant's conduct. She testified that she felt " shocked," " surprised," and uncomfortable." She further testified that she had difficulty comprehending what had happened, did not know how to respond, had never experienced anything like this in her career, and did not consider this experience to be a normal part of being a nurse. Any inconsistencies between other evidence and her testimony go to the weight and credibility of the evidence rather than its sufficiency. See Commonwealth v. Ruci, 409 Mass. 94, 97, 564 N.E.2d 1000 (1991). See also Commonwealth v. Miranda, 458 Mass. 100, 113, 934 N.E.2d 222 (2010) (" Questions of credibility are to be resolved in the Commonwealth's favor" ).

Although relevant factors, see Commonwealth v. Pereira, 82 Mass.App.Ct. 344, 347, 973 N.E.2d 679 (2012), and cases cited, the inferences to be drawn from Nurse Ndoro's demeanor at the time of the incident and failure to report the incident until the following day were questions for the jury. See Commonwealth v. Guy G., 53 Mass.App.Ct. 271, 274, 758 N.E.2d 643 (2001). See also Commonwealth v. Wilborne, 382 Mass. 241, 245, 415 N.E.2d 192 (1981) (quotation omitted) (" To the extent that conflicting inferences are possible from the evidence, it is for the jury to determine where the truth lies" ).[2] The judge correctly denied the defendant's motions for required findings.

Other claims. We also discern no merit in the defendant's remaining claims that certain testimony allowed by the judge was improperly admitted. As the trial judge ruled, Nurse Ndoro's description of her perception of the defendant's actions as " really evil" was relevant as a characterization of how she felt at the time of the incident, which is an element of the charged offense.[3] Nurse Grassi's testimony was relevant to establish and clarify the context in which Nurse Ndoro reported the incident. See Commonwealth v. Yesilciman, 406 Mass. 736, 744, 550 N.E.2d 378 (1990). This was particularly relevant where the defense emphasized Nurse Ndoro's delay in reporting as evidence that she was not shocked or alarmed by the defendant's conduct.

The determination of the balance between probative value and prejudice was for the trial judge. See Commonwealth v. Booker, 386 Mass. 466, 469, 436 N.E.2d 160 (1982). We grant the judge wide latitude in this determination, and she did not commit palpable error in allowing the jury to hear the challenged testimony.[4]

Judgment affirmed.

Cohen, Green & Trainor, JJ. [5]


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