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Commonwealth v. Nascimento

Appeals Court of Massachusetts, Nantucket

June 7, 2017

COMMONWEALTH
v.
VALDEIR AGUIAR DO NASCIMENTO.

          Heard: April 6, 2017.

         Complaint received and sworn to in the jury session of the Nantucket Division of the District Court Department on July 17, 2015.

         The case was tried before Thomas S. Barrett, J.

          Edward Crane for the defendant.

          Catherine H. Robertson, Assistant District Attorney, for the Commonwealth.

          Present: Vuono, Wolohojian, & Carhart, JJ. [1]

          WOLOHOJIAN, J.

         We consider here whether G. L. c. 272, § 105, as amended by St. 2014, c. 43, in response to Commonwealth v. Robertson, 467 Mass. 371 (2014), protects people in public places. The defendant argues that, although the Legislature clearly intended that the amended statute apply to public places, it failed to effectuate its intent. We disagree, and affirm the defendant's conviction.

         The defendant was charged with, and convicted of, violating G. L. c. 272, § 105, for using his cellphone to videotape surreptitiously two teenage girls under their sundresses while traveling on the ferry to Nantucket. The conduct took place on July 12, 2015, more than a year after the Legislature had -- in response to public outcry over the Robertson decision -- amended the statute to add the following language, portions of which we have highlighted because they are our focus here:

"Whoever wilfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public, and without the person's knowledge and consent, shall be punished ..."

G. L. c. 272, § 105 (b) .

"'Sexual or other intimate parts, ' [are defined as] human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments."

G. L. c. 272, § 105 (a.) . In essence, the defendant argues that because no reasonable person would believe his or her clothed anatomy would not be visible in a public place, the statute must be limited to non-public spaces.

         The amended language came about, as we noted above, in response to public reaction to Robertson, supra, in which the Supreme Judicial Court reversed the conviction of a man who had surreptitiously videotaped and photographed the clothed crotch areas of women seated across from him on the MBTA trolley. Robertson involved the earlier version of the statute, which applied only to persons who were photographed when "nude or partially nude." Id. at 375. Because the victims in that case were neither nude nor partially nude, the Supreme Judicial Court concluded that the defendant's conduct was not covered by ...


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