Commonwealth v. Botev, 945 N.E.2d 956

After a jury-waived trial in February 2010, Cohen was convicted on two counts of open and gross lewdness and sentenced; appeal argues identifications and duplicative convictions.
On November 14, 2008, two 15-year-old girls observed a man exposing himself for about 45 seconds at close range in a park.
The girls reported the incident to police; Officer Sheams encountered Cohen about a quarter mile away and later included him in a six-photo array.
The defense moved to suppress the photo array; the judge allowed suppression but reserved on independent-basis admissibility, and ordered a nonsuggestive identification procedure.
Approximately one year later, in a courthouse nonsuggestive procedure, the victims independently identified Cohen; he was arrested and later testified at the bench trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Independent-source admissibility of in-court identifications	Commonwealth contends independent source shown by opportunity to observe.	Cohen argues no independent source; identifications should be excluded.	Identifications admissible; independent source shown.
Multiplicity of convictions under open and gross lewdness statute	Two victims justify two separate counts.	Unit of prosecution is conduct-based; single offense.	Two convictions for open and gross lewdness cannot stand; only one stands; remand for sentencing and dismissal of remaining counts.

Commonwealth v. Botelho, 369 Mass. 860 (1976) (independent-source standard for in-court identifications)
Commonwealth v. Freeman, 352 Mass. 556 (1967) (review for errors not objected to at trial; substantial-risk standard)
Commonwealth v. Whelton, 428 Mass. 24 (1998) (identification issues under suppression context)
Commonwealth v. Crews, 445 U.S. 463 (1980) (supreme court on independence of identification source)
Commonwealth v. Antonmarchi, 70 Mass. App. Ct. 463 (2007) (unit of prosecution; lenity principle)