420 Mass. 535 | Mass. | 1995
The defendant, Michael F. Arthur, was charged in the District Court with indecent exposure in vio
The Commonwealth presented evidence in its case as follows. At about 10:45 a.m., on July 11, 1993, a mother and her then nine year old daughter were sitting in their vehicle waiting to leave a parking lot in Medway. The defendant walked in front of the vehicle. The mother described him as wearing a white “tank top” and blue shorts. The daughter described him as wearing a white tank top and a light blue bathing suit.
The defendant walked by the vehicle, rubbing his stomach with one hand while holding his tank top with the other. After he rubbed his stomach, the defendant started to pull up his shirt and to display his stomach while staring “affectionately” at the mother and her daughter. The mother observed the defendant lower his shorts, and she saw what she believed was pubic hair, a conclusion she reached because the defendant had a tan line. The mother averted her gaze because she did not want to see anything further.
The daughter testified that she saw the defendant pull the waistband on the right side of his bathing suit down to his knees. The daughter indicated that, as the defendant did this, the left side of his bathing suit “jerked” down to his mid-thigh. The defendant did not have any clothes on under his bathing suit, and his movement revealed his crotch area and pubic hair to the daughter, who also immediately turned her attention away. Neither the mother nor the daughter saw any portion of the defendant’s genitalia or buttocks. The incident was reported to the police. A Medway police officer stopped the defendant, and, after questioning, placed him
In his closing argument, the prosecutor argued that the evidence was sufficient to compel the conclusion beyond a reasonable doubt that the defendant had exposed his penis to the complainants. The prosecutor further argued that, even if it had not been proved that the defendant had exposed his genitalia, there was proof beyond a reasonable doubt that the complainants had observed pubic hair. This exposure, it was argued, was “so closely connected to [the] genital area, that it could be considered part of [the] genital area,” and was sufficient to constitute indecent exposure. The judge instructed the jury that the defendant could be found guilty of indecent exposure only if they found (among other things), beyond a reasonable doubt, that he had “exposed his genitals or buttocks to one or more persons.”
1. The defendant concedes that, if the evidence were sufficient to prove beyond a reasonable doubt that he exposed his genitalia, his conviction under G. L. c. 272, § 53, would be warranted. See Commonwealth v. Bishop, 296 Mass. 459, 460 (1937) (defendant completely naked from waist down). The point is close, but we agree with the defendant’s contention that the evidence did not warrant the conclusion that the defendant had exposed his genitalia. We do not deem the daughter’s testimony concerning the defendant’s pulling down of the right side of his bathing suit or shorts as sufficient to support an inference by the jury beyond a reasonable doubt that his conduct at that point had necessarily exposed some portion of his genitalia.
2. We turn therefore to the Commonwealth’s alternative contention, which was argued to the jury, that exposure of pubic hair falls within the ambit of the statutory prohibition
Among jurisdictions which have enacted legislation naming with specificity those parts of the body exposure of which constitutes the offense, a significant number limit their prohibition to exposure of the genitalia. See People v. Santorelli, 80 N.Y.2d 875, 882 (1992) (Titone, J., concurring) (noting that twenty-two States prohibit only indecent exposure of genitalia and collecting the statutes). See also Model Penal Code § 213.5 (Official Draft 1980) (limiting model rule to exposure of genitals). So far as we have been able to determine, only three States (Indiana, Iowa, and New Mexico), would treat as indecent the intentional exposure of the genital area or pubic hair, and these jurisdictions do so by means of legislation which is explicit in its terms. See Ind. Code Ann. § 35-45-4-1 (Burns 1994) (prohibiting exposure of pubic area or buttocks); Iowa Code § 709.9 (1992) (prohibiting exposure of “genitals or pubes”); N.M. Stat. Ann. § 30-9-14 (Michie 1978) (prohibiting exposure of primary genital area). It thus appears that the term “indecent exposure” lacks a “commonly understood meaning,” Commonwealth v. Sefranka, supra at 111, when considered with respect to parts of the body other than the genitalia. Certainly, it cannot be said that any commonly accepted definition of the term extends to the exposure of the genital area or pubic hair. See Commonwealth v. Balthazar, 366 Mass. 298, 300 (1974).
When a term used in a criminal statute lacks precision, it may nonetheless be “clarified by judicial explanation or by application to particular conduct.” Commonwealth v. Adams, 389 Mass. 265, 271 (1983). If this occurs, “the statute will withstand a challenge that it is unconstitutionally vague.” Id. The defendant would have had fair warning that the exposure of his genitalia would be a crime from the decision in Commonwealth v. Bishop, 246 Mass. 459 (1937). Moreover, we have said that the “open and gross lewdness and lascivious behavior” provision of G. L. c. 272, § 16
The judgment of conviction is reversed and the verdict is set aside. Judgment is to be entered for the defendant.
So ordered.
A nolle prosequi was entered on an additional charge which asserted that the defendant had violated the lewd, wanton, and lascivious person provision of G. L. c. 272, § 53 (1992 ed.).
Our agreement with the defendant’s argument concerning the sufficiency of the evidence will not benefit the individual whose conduct is sufficiently offensive that his victims turn away before he has completed an act of indecent exposure. There may be evidence sufficient to prove that exposure of genitalia occurred, even when a victim has averted his or her eyes. Such evidence was lacking in this case.
“Generally, a challenge to the constitutionality of a statute as applied should be preserved in a motion for a required finding of not guilty . . .” (emphasis in original). Commonwealth v. Oakes, 407 Mass. 92, 94 (1990). It does not appear that the defendant argued below that, if the statute was construed to prohibit the exposure of pubic hair, it would be unconstitutionally vague as applied to him. Until the point was raised in the prosecutor’s closing argument, it was not apparent that the Commonwealth espoused this interpretation of the term “indecent exposure.” Thus, the defendant could not have anticipated the issue in his motion for a required finding, which was filed at the close of the Commonwealth’s evidence in accord with Mass. R. Crim. P. 25 (a), 378 Mass. 896 (1979). In view of the argument, and the judge’s instruction, which did not clarify whether the term “genitals” could include the genital area, it is possible that the defendant’s conviction rested on proof of the exposure of pubic hair only. For this reason, and because Massachusetts decisions have not, thus far, provided clear and definite content to the term “indecent exposure,” we exercise our power to reach an issue that was not squarely raised at trial. See Commonwealth v. Oakes, supra at 94-95; Commonwealth v. Sefranka, 382 Mass. 108, 115 (1980); Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
It was noted in Commonwealth v. Sefranka, supra at 112, that “most of the provisions in § 53 have been attacked for vagueness.” See also Commonwealth v. Templeman, 376 Mass. 533, 535 (1978).