65 N.E.3d 1160
Mass.2017Background
- Defendant Lawrence F. Maguire was arrested after MBTA Detective Conway observed him masturbating on trains and briefly exposing his penis on a crowded station platform.
- Detective Conway followed the defendant, saw the exposure for one to two seconds, felt "disgusted" and concerned for nearby women, and arrested the defendant after a brief pursuit.
- Maguire was convicted by a jury in Boston Municipal Court of open and gross lewdness and lascivious behavior (G. L. c. 272, § 16) and resisting arrest; the Appeals Court affirmed in a divided decision.
- The Supreme Judicial Court granted further review, affirmed the resisting-arrest conviction, but reversed the § 16 conviction for insufficient evidence of "shock" or "alarm."
- The court remanded for entry of conviction on the lesser included offense of indecent exposure (G. L. c. 272, § 53) because exposure and other elements were not challenged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence showed at least one person was "in fact" shocked or alarmed by the exposure (subjective element of § 16) | Detective Conway's testimony that he was "disgusted" and concerned for women proved subjective shock or alarm | Detective (and prosecution) cannot substitute the officer's vicarious concern for actual victims; no witness testified to being shocked or alarmed | Reversed § 16 conviction: insufficient evidence that any person was personally "shocked or alarmed" |
| Whether the victim's reaction must be objectively reasonable (objective element of § 16) | Court should credit a victim's reaction if testified to by witness (implicitly reasonable here) | Commonwealth must show that any claimed shock or alarm was reasonable under the circumstances | Court held § 16 requires both subjective reaction and an objective reasonableness inquiry; Commonwealth failed the subjective prong here so did not reach objective prong |
| Distinguishing felony § 16 from misdemeanor indecent exposure (§ 53) | The exposure produced alarm/shock warranting felony treatment | If no one was actually shocked/alarmed, the conduct fits misdemeanor indecent exposure | Because the fifth element (actual shock/alarm) was unmet, conviction must be reduced to indecent exposure |
| Sufficiency of evidence overall to support § 16 where only police officer observed and reacted | Officer's testimony and actions (pursuit, disgust) suffice to show alarm | Vicarious concern and officer-only reaction are insufficient to prove a victim was actually alarmed | Court required personal victim shock/alarm, not merely officer's vicarious concern; evidence insufficient |
Key Cases Cited
- Commonwealth v. Fitta, 391 Mass. 394 (Mass. 1984) (explains elements distinguishing § 16 felony from § 53 misdemeanor)
- Commonwealth v. Kessler, 442 Mass. 770 (Mass. 2004) (frames "shock" or "alarm" standard and required intensity of reaction)
- Commonwealth v. Ora, 451 Mass. 125 (Mass. 2008) (emphasizes prevention of fright and intimidation as § 16 objective)
- Commonwealth v. Botev, 79 Mass. App. Ct. 281 (Mass. App. Ct. 2011) (requires that at least one person be personally shocked or alarmed)
- Commonwealth v. Pereira, 82 Mass. App. Ct. 344 (Mass. App. Ct. 2012) (discusses officer testimony of disgust/anger and limits of such evidence)