Commonwealth v. LePoreCommonwealth v. LePore
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Erasmo LePore was convicted of being a disorderly person (
On the evidence, the judge could have found as follows. At about 10:00 p.m., August 4, 1994, Christy Hamilton was alone in her apartment when she spotted LePore. That apartment, located at the rear of 177 Marlborough Street, Boston, was a ground-floor studio with windows onto a smаll parking area off the public alley which served the back of the building. The man that Hamilton noticed — who wore black jeans, a dark shirt, and a black baseball cap — seemed to her to approach her windows in an aggressive and threatening manner. She “yelled” at him to get away. He obeyed, and Hamilton promptly called the police. Two Boston police officers, Carl J. Nemes and his partner, Clifford M. Connolly, responded in minutes, obtained a statement and description from Hamilton, and set about searching the alley.
Within minutes, the officers found LePore in the alley behind 25 Marlborough Street, in an alcove formed by two garages. LePore was standing near a ground-floоr apartment window. The remains of two cigarettes were on the ground in the alley, one still smoldering. The window and screen were open, the interior shade was drawn, and there were iron bars over the window. LePore’s clothing and physical appearance matched those described by Hamilton. When questioned, LePore claimed he had gone into the alley to urinate; there was no confirmatory physical evidence.
The young woman occupying this second apartment, Kathy Walsh, was dozing in bed, the television on. Although the window by which LePore stood looked out from the room *545where she slept, Walsh was not aware of his presence until she heard, and was startled by, the сonfrontation between the police officers and LePore. The screen had been shut approximately fifteen minutes earlier when Walsh went to bed; it was not possible for a wind or breeze to have opened it.
The officers took LePore to 177 Marlborough Street, where Hamilton identified him as the individual she had seen earlier.
LеPore was arrested and charged with one count each of breaking and entering in the nighttime with the intent to commit a felony,
At trial, Hamilton testified on direct examination to the events which took place at 177 Marlborough Street. LePore’s attorney declined to cross-examine Hamilton. Walsh and Officer Nemes testified to the events which occurred at 25 Marlborough Street.
As the text in note 3 shows, § 53, which has long lineage, is a vessel into which the Legislature has tossed a variety of conduct thought sufficiently offensive to society to be declared criminal. The words “with offensive and disorderly acts . . . accost or annoy persons of the opposite sex” are among those that describe the conduct complained of in this case. A person is “disorderly” under
An equation between voyeurism and disorderly conduct (i.e., being a disorderly person) is not self-evident. Voyeurism, in a dictionary sense and as used in the cases, connotes sexually offеnsive conduct, the idea apparently being that a man is unlikely to peer through somebody’s window to size up the furniture. American Heritage Dictionary 2004 (3d ed. 1992). See District of Columbia v. Jordan, 232 A.2d 298, 299 (D.C. 1967). Disorderly conduct, as interpreted in Alegata v. Commonwealth, 353 Mass, at 303-304, “is not primarily, if at all, directed at offensive sexual conduct,” but, rather, at intentional conduct that “disturb[s] the public tranquility, or alarm[s] or provoke[s] others.” Commonwealth v. Blavackas, 11 Mass. App. Ct. 746, 749 (1981). To be disorderly, within the sensе of the statute, the conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses the statute. See Commonwealth v. A Juvenile, 368 Mass. 580, 597-598 (1975). Compare Commonwealth v. Richards, 369 Mass. 443, 447-448 (1976), in which the defendants punched police officers, who were making an arrest, and attracted an unruly crowd.
Disorderly conduct statutes in other states have included voyeurism within their scope, by exрress statutory language or by case law. Jurisdictions whose disorderly conduct, criminal trespass, or “Peeping Tom”4 statutes expressly interdict voyeurism include Arizona,5 California,6 Georgia,7 Illinois,8 *547Mississippi,9 and North Carolina.10 In most of these statutes, trespass upon the property of the person pried upon is an element of the offense.
The District of Columbia, under a clause in its disorderly conduct statute,11 includes “[a]cts in such manner as to annoy, disturb, interfere with, obstruct, or be offensive to others.” In Carey v. District of Columbia, 102 A.2d 314, 314-315 (D.C. 1953), and District of Columbia v. Jordan, 232 A.2d 298, 299 (D.C. 1967), the court decided that peeping in the window of an occupied apartment was disorderly conduct because the offensive nature of the act menaced public order *548and tranquility.12 A judge of the Superior Court of New Jersey, on the other hand, decided that a disorderly conduct statute whiсh proscribed engaging “in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously to annoy such other person,”
No similar scrubbing of a “Peeping Tom” statute from the books has occurred in Massachusеtts, and no express prohibition against voyeurism has appeared elsewhere in the Massachusetts statutes.13 In the absence of an express prohibition concerning voyeurism in the General Laws, we think
1. Sufficiency of the evidence. The evidentiary record supported findings that LePore’s conduct had been threatening (in the assaultive behavior behind 177 Marlborough Street) and to have created a physically offensive condition, by acts behind 25 Marlborough Street which served nо legitimate purpose. At both locations, a trier of fact could infer, LePore was engaged in voyeurism.
In the first episode, Hamilton was sufficiently alarmed and *549offended so that she called the police. In the second episode — behind 25 Marlborough Street ■— there was evidence warranting inferences that LePore had tampered with Walsh’s screen and had lurked at her window long enough tо smoke two cigarettes. LePore’s explanation that he had ducked into the public alley to relieve himself could be seen as lame in light of his presence in the same alley a few blocks away several minutes earlier. Indeed, his implausible reason for being outside Walsh’s window could be read as evidence of consciousness of guilt. See Commonwealth v. Booker, 386 Mass. 466, 471 (1982); Liacos, Massachusetts Evidence § 4.2.1, at 120-121 (6th ed. 1994).
Of the episode behind 25 Marlborough Street, LePore argues that the government’s case fails because the state of the evidence was that Walsh never knew he was there. Conduct that is disorderly by reason of its physically offensive nature does not, however, require that the object of the offensive conduct be aware of it. Carey v. District of Columbia, 102 A.2d at 315. Acting the “Peeping Tom” offends and results in disorder by invading the privacy of persons precisely where they are most entitled to feel secure — where they live and rest. The transgression is completed by the violation of privacy just as a trespass may be completed even though the ownеr of property may not at the time of invasion have known of the presence of the trespasser on her property. LePore’s conduct caused public inconvenience or alarm in that it occurred in a public alley. Alegata v. Commonwealth, 353 Mass, at 304. Although the occupant of 25 Marlborough Street was not conscious of being watched by LePоre, the occupant of 177 Marlborough Street was conscious of his presence and alarmed by it. As we shall discuss in the next section, it was proper to consider the two incidents as related, and doing so makes marginal in any event the defendant’s argument about the necessity of the object of covert surveillance being aware of it to make voyeurism a crime.
On the basis of the elements of the crime of disorderly conduct as we have discussed them and viewing the evidence in the light most favorable to the Commonwealth, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Commonwealth v. Feigenbaum, 404 Mass, at 474.
*5502. Admission of evidence of the incident behind 177 Marlborough Street. The complaint against LePore cited breaking and entering the property of Kathy Walsh, who lived at 25 Marlborough Street, and, indeed, the complaint listed that address as the place of the offense. The disorderly conduct charge was not tied to Walsh but the place of offense listing could be read as referring to that count in the complaint. Taking the complaint as applying solely to the 25 Marlborough Street episode, LePore argues that it was prejudicial error to receive evidence of the 177 Marlborough Street episode.
We are disinclined, in light of the entire procedural background, to read the complaint as limitеd to the second incident, at 25 Marlborough Street. An allegation as to place is not essential to describing the crime of disorderly conduct, and the omission of the place or one of the places where the crime occurred is not a defect in the complaint.
Evidence of the 177 Marlborough Street episode was admissible on another ground. LePore’s conduct behind 177 Marlborough Street minutes before being confronted behind 25 Marlborough Street was probative of the nature of his conduct and intent at the second location, i.e., whether he was in thе alley to urinate or as a voyeur. See Commonwealth v. Imbruglia, 377 Mass. 682, 695 (1979) (evidence of the defendant’s *551other fencing activities within the same time period as the crime alleged was probative of his knowledge that the goods were stolen); Commonwealth v. Rancourt, 399 Mass. 269, 275-276 (1987) (evidence that the defendant attempted forcibly to enter a car in which two women were riding shortly before entering the rape victim’s car was admissible to prove forcible entry and was relevant to issues of intent and motive); Commonwealth v. Gordon, 407 Mass. 340, 351 (1990) (evidence of a prior confrontation between the victim and defendant was relevant to the issue of whether the victim reasonably feared the defendant); Commonwealth v. Cohen, 412 Mass. 375, 380 (1992) (circumstantial evidence may be used to prove a factual proposition and the inference proposed need not be the only one possible); Commonwealth v. Higgenbottom, 11 Mass. App. Ct. 912, 914-915 (1981) (evidence of a prior aborted robbery was probative of a common scheme or plan); Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 430-432 (1985) (at trial on indictment charging indecent assault and battery upon a patient, evidence that the defendant, a doctor, committed similar misconduct against two other female patients was probative of a common scheme, a pattern of conduct, and the absence of accident or mistake). See generally Liacos, Massachusetts Evidence § 4.1.3, at 115-120, § 4.4.8, at 156-167 (6th ed. 1994).14 The decision to admit Hamilton’s testimony was an appropriate exercise of the judge’s discretion.
Judgment affirmed.
Notes
LePore was found not guilty of a charge of breaking and entering a dwelling in the nighttime with intent to commit a felony (
LePore had first opted for a jury trial and then waived his right to trial by jury. See
Section 53, as appearing in St. 1983, c. 66, § 1, provides as follows: “Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house оf correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.”
The term is an allusion to the Peeping Tom of Coventry, who popped out his head as the naked Lady Godiva passed, and was struck blind for it. Oxford English Dictionaiy 2113 (Compact ed. 1971). American Heritage Dictionary 1335 (3d ed. 1992).
Arizona’s “Peeping Tom” statute,
Ill. Comp. Stat., ch. 720, section 5/26-l(a)(5) (1993). “Enters upon the property of another and for a lewd or unlawful purpose deliberately looks into a dwelling on the рroperty through any window or other opening in it.” See also People v. Miller, 91 Ill. App. 3d 1031 (1980).
On two occasions, in 1991 and 1995, the Court of Appeals of Wisconsin has applied a disorderly cоnduct statute, Wise. Stat. Ann. § 947.01 (1996), that resembles that of Massachusetts, to acts of voyeurism, but the opinions are unpublished and under a local rule, Wise. Stat. Ann. § 809.23(3) (1996), have no precedential value on substantive issues.
An amendment to
Although defense counsel objected to Hamilton’s testimony, he did not attempt to impeach her characterization of LePore’s conduct at 177 Marlborough Street, i.e., that she was perhaps mistaken or unreasonable in characterizing LePore’s approach as aggressive or threatening.