Heard: November 13, 2018.
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.
J. Mondou for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
Present: Milkey, Henry, & Englander, JJ.
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.
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
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.
The reporting of the incident.
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.
The video ...