35 N.E.3d 424
Mass. App. Ct.2015Background
- Defendant Lawrence Maguire was convicted by a jury in Boston Municipal Court of open and gross lewdness (G. L. c. 272, § 16) and resisting arrest (G. L. c. 268, § 32B) after a MBTA detective observed him expose his penis on a subway platform and then chased, subdued, and handcuffed him following a struggle.
- Detective Conway followed the defendant from a train, observed him rub his penis over his pants and later, on the platform, saw the defendant expose his penis while facing women sitting on a bench; Conway described feeling "disgusted" and "concerned" for the women.
- Upon making eye contact the defendant tried to zip up and fled; Conway pursued, announced "Stop, police," and when he caught up the defendant assumed a fighting stance, punched Conway, and resisted being handcuffed.
- The jury acquitted the defendant of assault and battery on a public employee and a lesser assault charge; the defendant moved for required findings of not guilty which were denied.
- On appeal the defendant argued the evidence was insufficient to prove (1) that the exposure actually caused alarm or shock (an element of § 16) and (2) that he knowingly resisted an arrest; the court affirmed both convictions.
Issues
| Issue | Commonwealth's Argument | Maguire's Argument | Held |
|---|---|---|---|
| Sufficiency re: open and gross lewdness (did exposure "actually shock or alarm" a person?) | Detective Conway’s testimony that he was "disgusted" and "concerned" for the women showed a significant negative emotion sufficient to prove actual shock/alarm. | "Disgust" and "concern" are equivocal/vicarious and do not show the serious negative impact § 16 requires; at most supports indecent exposure. | Affirmed: a reasonable jury could find Conway experienced shock/alarm; evidence sufficient for § 16 conviction. |
| Sufficiency re: elements 1–4 of § 16 (exposure, intentional, open, so as to produce alarm) | Conway’s observations showed intentional, open exposure facing women in public, meeting elements 1–4. | Challenged generally, but main focus was element 5. | Affirmed: elements 1–4 adequately proven. |
| Resisting arrest (was defendant "being arrested" and did he knowingly resist?) | Repeated commands "Stop, police," visible badge/firearm, flight, fighting stance, and prolonged struggle show a reasonable person would understand arrest and that defendant used force to prevent it. | Initially may not have known Conway was an officer (detective not in uniform); thus lack of knowledge could negate § 32B. | Affirmed: objective circumstances—commands, struggle, and compliance efforts—were sufficient to show a knowing resistance to an arrest. |
| Proper remedy if § 16 insufficient | N/A | If § 16 not proven, conviction should be reduced to indecent exposure (lesser included offense). | Majority rejected; concurrence would reverse § 16 and enter conviction for indecent exposure. |
Key Cases Cited
- Commonwealth v. Kessler, 442 Mass. 770 (definition and required proof of open and gross lewdness; higher impact than indecent exposure)
- Commonwealth v. Pereira, 82 Mass. App. Ct. 344 (police officer's testimony of anger/disgust can satisfy actual shock/alarm element)
- Commonwealth v. Swan, 73 Mass. App. Ct. 258 (elements of open and gross lewdness explained; proximity to victim relevant to causing alarm)
- Commonwealth v. Ora, 451 Mass. 125 (statute's central purpose: preventing fright/intimidation; requires audience be unsuspecting or unwilling)
- Commonwealth v. Grandison, 433 Mass. 135 (when an officer is effecting an arrest—actual/constructive seizure with intent and understood by detainee)
- Commonwealth v. Quintos Q., 457 Mass. 107 (establishes objective test whether reasonable person would understand they were under arrest)
- Commonwealth v. Cahill, 446 Mass. 778 (distinguishing "offensive" conduct under indecent exposure)
- Commonwealth v. Gray, 40 Mass. App. Ct. 901 ("disgusted" reaction by witness can support finding of shock/alarm)