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Commonwealth v. Maguire

Supreme Judicial Court of Massachusetts, Suffolk

January 3, 2017

COMMONWEALTH
v.
LAWRENCE F. MAGUIRE.

          Heard: September 8, 2016.

         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.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Bradford R. Stanton for the defendant.

          Matthew T. Sears, Assistant District Attorney (Ashley E. Polin, Assistant District Attorney, with him) for the Commonwealth.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          HINES, J.

         After a jury trial, the defendant, Lawrence F. Maguire, was convicted in the Boston Municipal Court 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, § 32B. The Appeals Court affirmed the convictions in a divided decision. See Commonwealth v. Maguire, 87 Mass.App.Ct. 855 (2015). We granted the defendant's application for further appellate review. After the case was entered in this court, the defendant requested and received leave to file a new brief. See Mass. R. A. P. 27.1 (f), as amended, 441 Mass. 1601 (2004). We consider the brief "in lieu of the Appeals Court brief." Id. See Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006) . The brief filed in this court makes no argument bearing on the conviction of resisting arrest, and we do not, therefore, address the merits of that conviction. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Walsh, 407 Mass. 740, 745 (1990). We affirm the conviction of resisting arrest. We reverse the conviction of open and gross lewdness and lascivious behavior because there was insufficient evidence that the defendant's conduct caused any person to experience "shock" or "alarm, " as the statute requires. We remand for entry of a conviction of the lesser included offense of indecent exposure. We also clarify that the "shock" or "alarm" requirement has both a subjective and an objective component.

         Facts.

         We summarize the facts in the light most favorable to the Commonwealth, focusing on those relevant to the defendant's claim of insufficiency of the evidence of open and gross lewdness and lascivious behavior. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

         On October 14, 2010, Detective Sean Conway of the Massachusetts Bay Transportation Authority (MBTA) transit police department observed the defendant on an MBTA train traveling toward the Park Street station. At Park Street, the defendant transferred to another train, and sat across from a college-aged woman. Detective Conway transferred onto the same train. From a distance of approximately eight to ten feet, the detective observed the defendant rub his penis over his pants for thirty seconds to one minute. When the defendant departed the train at the Hynes Convention Center station, Detective Conway continued to follow him.

         There were between fifteen and twenty-five people on the Hynes Convention Center station platform at that time. From a distance of about thirty feet behind the defendant, while on the same side of the train tracks, Detective Conway saw the defendant lean against a pillar with his left shoulder, with his hands in front of him, facing a bench five or six feet away. Two or three females were sitting on the bench. The defendant jerked his head up and down as if he were trying to attract the females' attention and he began to manipulate his hands in front of him, "consistent with someone who's about to urinate." No urine was observed on the ground. Detective Conway demonstrated the defendant's movements to the jury.

         Detective Conway ascended a flight of stairs, crossed over a landing, and went down another flight of stairs to a different area of the same platform, so that he could see more clearly what the defendant was doing. As he descended the stairs, the detective observed the defendant still facing the women seated on the bench. He saw the defendant's exposed penis for one or two seconds. Detective Conway testified that he was "disgusted" and "concerned" that the women on the bench were being "victimized" by the defendant's behavior. Almost simultaneously, the detective made eye contact with the defendant, and the defendant tried to zip his pants and run away. Detective Conway attempted to speak with the women on the bench but was unable to communicate with them, for reasons not apparent on the record. The detective then pursued the defendant, who eventually was arrested.

         D ...


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