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Commonwealth v. Fielding

Appeals Court of Massachusetts, Dukes

January 29, 2019

COMMONWEALTH
v.
SCOTT E. FIELDING.

          Heard: November 13, 2018.

         Complaint received and sworn to in the Edgartown Division of the District Court Department on May 16, 2016. The case was tried before J. Thomas Kirkman, J.

          Darla J. Mondou for the defendant.

          Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Henry, & Englander, JJ.

          MILKEY, J.

         A District Court jury convicted the defendant of open and gross lewdness based on testimony that he had masturbated in front of a woman (victim) in a health club sauna in Tisbury. The principal defense at trial was misidentification. On appeal, the defendant challenges the admission at trial of a photograph of a man that the victim identified as the perpetrator the day after the incident, as well as the victim's in-court identification of the defendant. Discerning no error, we affirm.

         Background.[1]

         1. The incident.

         On May 2, 2016, at approximately 6:00 £.M., the victim was swimming laps at the health club's pool. A man whom she had not before met appeared at the shallow end of the pool and began talking to her. The victim continued her workout but would pause to converse with him in between her laps. The man introduced himself to the victim as "Scott," and the two interacted in the pool for approximately fifteen minutes.

         After the victim completed her swimming, she and the man she knew as "Scott" went into the hot tub, where they sat close to each other and chatted some more. They then each expressed an interest in going into the sauna. When the victim arrived at the sauna, "Scott" was already inside with the light off. The victim turned on the light and entered the sauna, and the two conversed some more, bringing their total interaction to about thirty minutes long. The victim testified that she was "[o]ne hundred percent certain" the person inside the sauna was the same man from the pool and hot tub. After chatting with "Scott" for several minutes, the victim heard a "scratching" sound from where he was sitting, and as she got up to leave the sauna, he asked her, "[D]o you want to look?" She turned and observed the man stroking his genitalia, which shocked and angered her.

         2. The reporting of the incident.

         The following day, the victim went to a sexual assault crisis center to report what had happened. She then reported it to the police. That same day, she returned to the health club for a yoga class, where she told her instructor that something had occurred the day before that might make it difficult to get through class. The yoga instructor convinced her to report whatever had happened to club personnel, and the victim did so after class. While the victim was relaying the incident to the receptionist, the yoga instructor came up to the victim and listened to her description of the man. According to the victim, the yoga instructor then interjected "that she thought she knew him because [a man of similar description] had approached her and her daughter." Then, on the club's computer, the yoga instructor located a photograph of the man she was thinking of on the social media Web site known as "Facebook." She showed that photograph to the victim, who identified the man depicted there as the one who first had approached her in the pool and later had masturbated in front of her in the sauna.

         3. The video ...


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