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Commonwealth v. Taranovsky

Appeals Court of Massachusetts, Suffolk

June 18, 2018

COMMONWEALTH
v.
DMYTRO TARANOVSKY.

          Heard: December 7, 2017.

         Complaint received and sworn to in the Charlestown Division of the Boston Municipal Court Department on August 12, 2015. After transfer to the Central Division of the Boston Municipal Court Department, the case was tried before Mark H. Summerville, J.

          Christopher DeMayo for the defendant.

          Para Z. Kesselheim, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Blake, & McDonough, JJ.

          AGNES, J.

         As pertinent here, the statute punishing "open and gross lewdness and lascivious behavior, " G. L. c. 272, § 16, has remained unchanged for more than 230 years. See Commonwealth v. Quinn, 439 Mass. 492, 495 & n.7 (2003), citing St. 1784, c. 40, § 3. However, during that time, the definition of the crime has "evolved through our decisional law." Commonwealth v. Maguire, 476 Mass. 156, 158 (2017). The Maguire decision represents the most recent "judicial construction" of the statute. Id. at 161, quoting from Commonwealth v. Ora, 451 Mass. 125, 128 (2008). In Maguire, the court announced that one of the five elements of the offense (element four) requires the Commonwealth to prove an "objective component, " namely, that the defendant's conduct not only caused one or more persons to be shocked or alarmed, but in addition, "that 'shock' or 'alarm' was an objectively reasonable reaction in the circumstances of the conduct." Maguire, supra at 161.[1] This requirement does not appear in any previously reported Massachusetts appellate decision. Not surprisingly, the jury in this case were not instructed in accordance with Maguire, which was decided approximately three months after the conclusion of the defendant's trial. We conclude that the absence of such an instruction created a substantial risk of a miscarriage of justice, and accordingly reverse the defendant's conviction of open and gross lewdness.

         Background.

         Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following facts.

         On August 9, 2015, a twenty-seven year old female witness, N.M., was out for a boat ride on the Charles River with her father and some friends. The boat was tied up in front of the Hatch Shell on the Esplanade, which is owned by the Department of Conservation and Recreation, patrolled by the State police, and open to the public. N.M. noticed two children, between the ages of five and seven, who were riding scooters. They stopped suddenly and turned their heads toward something. When she followed their gaze to see what had caught their attention, she saw an individual, later identified as the defendant, walking in a "casual strut" down the walkway on the Esplanade. He walked the way models walk down the runway, to "let everybody see the outfit." The defendant was wearing a black sock-like object over his genitals, held in place by three strings in the shape of a "T." N.M. described it as a "banana hammock." The defendant's buttocks were exposed and he was otherwise completely naked.

         When N.M. saw the defendant, she felt "shocked" and "just a little disgusted." She explained that she "wouldn't expose that to anybody, " and further described what she had seen as "just a little unnerving." She testified that her reaction was based, in part, on the fact that there were children in the area who also saw the defendant. She took a photograph of the defendant, which was admitted into evidence. N.M. then decided to flag down a State police trooper passing by to report what she had seen. As the trooper, David Twomey, approached the defendant, he quickly turned away and put on his pants. The defendant appeared nervous, as "his eyebrows were twitching and he was stuttering." He told Twomey that he was sunbathing. Twomey subsequently placed the defendant under arrest.

         Discussion.

         1. Sufficiency of the evidence.

         The defendant argues on appeal that the Commonwealth's evidence was not sufficient to prove that his behavior was objectively and subjectively ...


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