Heard: September 8, 2016.
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.
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
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
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.
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).
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.
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.
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.