105 N.E.3d 266
Mass. App. Ct.2018Background
- Defendant was observed on the Boston Esplanade wearing only a thong-like covering that left his buttocks exposed; a bystander (N.M.) testified she felt "shocked" and "a little disgusted," in part because children were nearby, and photographed him.
- State trooper approached; defendant turned away, pulled up pants, appeared nervous, and was arrested. Case tried in Boston Municipal Court; conviction for open and gross lewdness and lascivious behavior followed.
- After trial, the Supreme Judicial Court decided Commonwealth v. Maguire, which added an objective-reasonableness component to the statute's fourth element (that the act "would alarm or shock a reasonable person"). Maguire issued roughly three months after this trial concluded.
- At trial the jury received pre-Maguire model instructions that required proof the act "produced alarm or shock" (without an independent objective-reasonableness requirement), and the jury later asked for the statute and were reinstructed using the same pre-Maguire formulation.
- On appeal the defendant argued (among other things) that the evidence did not satisfy Maguire's objective component and that the judge failed to instruct the jury on that element; the Appeals Court found the omission created a substantial risk of a miscarriage of justice and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Maguire's objective-reasonableness rule | Commonwealth: Maguire is statutory construction and applies to cases pending direct review | Taranovsky: Maguire's new objective element should not apply retroactively to his trial | Court: Maguire construed the statute, so its rule applies to this case on review |
| Sufficiency of evidence — objective component (would a reasonable person be shocked) | Commonwealth: reasonable minds could find exposure of buttocks in public near children objectively shocking given circumstances | Taranovsky: evidence was insufficient to prove an objectively reasonable reaction from N.M.'s vantage point | Court: the question is close; evidence arguably weak on objective prong, so remand for new trial to allow proper jury consideration |
| Sufficiency of evidence — subjective component (someone was actually shocked) | Commonwealth: N.M.'s testimony, photograph, and prompt reporting support actual shock/alarm | Taranovsky: contested sufficiency | Court: sufficient evidence that at least one person (N.M.) was shocked/alarmed (fifth element) |
| Admission of testimony about children and closing argument/reference to children | Commonwealth: testimony and references were admissible to provide contextual "continuous story" and were proper argument based on evidence | Taranovsky: such testimony and references were prejudicial | Court: no error in admitting testimony or in prosecutor's comments; no miscarriage of justice on that ground |
Key Cases Cited
- Commonwealth v. Maguire, 476 Mass. 156 (judicially clarified that element four requires that the act "would alarm or shock a reasonable person")
- Commonwealth v. Quinn, 439 Mass. 492 (discussed "shock or alarm" element and examples of conduct meeting it)
- Commonwealth v. Kessler, 442 Mass. 770 (treatment of what qualifies as "alarm or shock")
- Commonwealth v. Latimore, 378 Mass. 671 (standard for viewing evidence in the light most favorable to the Commonwealth)
- Commonwealth v. Pereira, 82 Mass. App. Ct. 344 (consideration of indicia of emotional state and proximity of children in assessing "alarm or shock")
- Old Chief v. United States, 519 U.S. 172 (prosecution may present evidentiary "depth" to tell a continuous story)