Heard: December 7, 2017.
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.
Christopher DeMayo for the defendant.
Z. Kesselheim, Assistant District Attorney, for the
Present: Agnes, Blake, & McDonough, JJ.
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
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
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.
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.
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.
Sufficiency of the evidence.
defendant argues on appeal that the Commonwealth's
evidence was not sufficient to prove that his behavior was
objectively and subjectively ...